Respondents Brief — North Carolina Utilities Commission, Petitioner v. Federal Energy Regulatory Commission

No. 19-42

In the Supreme Court of the United States

NORTH CAROLINA UTILITIES COMMISSION, PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

JAMES P. DANLY

General Counsel

ROBERT H. SOLOMON

Solicitor

JARED B. FISH

Attorney

Federal Energy Regulatory

Commission

Washington, D.C. 20426

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in dismissing a

petition for judicial review, brought by a state agency

under a provision of the Natural Gas Act, 15 U.S.C.

717r(b), for lack of Article III standing where the

agency failed to demonstrate a concrete and particularized injury in fact.

(I)

ADDITIONAL RELATED PROCEEDING

United States Court of Appeals (D.C. Cir.):

North Carolina Utilities Commission v. Federal

Energy Regulatory Commission, No. 18-1018

(Apr. 3, 2019)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 7

Conclusion ................................................................................... 13

TABLE OF AUTHORITIES

Cases:

Algonquin Gas Transmission Co. v. Federal Power

Comm’n, 534 F.2d 952 (D.C. Cir. 1976) .............................. 3

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015),

cert. denied, 136 S. Ct. 900 (2016) ..................................... 12

Atlantic Ref. Co. v. Public Serv. Comm’n,

360 U.S. 378 (1959)................................................................ 2

Center for Biological Diversity v. United States

Dep’t of Interior, 563 F.3d 466 (D.C. Cir. 2009) .............. 11

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) .......... 12

Coalition for Responsible Regulation, Inc. v. EPA,

684 F.3d 102 (D.C. Cir. 2012), aff ’d in part, rev’d in

part sub nom. Utility Air Regulatory Grp. v. EPA,

573 U.S. 302 (2014).............................................................. 10

Connecticut v. American Elec. Power Co.,

582 F.3d 309 (2d Cir. 2009), aff ’d on jurisdiction by

an equally divided Court, 564 U.S. 410 (2011) ........... 12, 13

Delaware Dep’t of Natural Res. & Envtl. Control v.

FERC, 558 F.3d 575 (D.C. Cir. 2009) ............................... 10

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) ........ 9

Government of Manitoba v. Bernhardt,

923 F.3d 173 (D.C. Cir. 2019) ............................................. 11

Kansas Corp. Comm’n v. FERC, 881 F.3d 924

(D.C. Cir. 2018) ........................................................... 6, 8, 11

(III)

IV

Cases—Continued:

Page

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...... 7, 10

Massachusetts v. EPA, 549 U.S. 497 (2007) ............... 8, 9, 10

Missouri Pub. Serv. Comm’n v. FERC:

337 F.3d 1066 (D.C. Cir. 2003) ..................................... 2, 3

601 F.3d 581 (D.C. Cir. 2010) ....................................... 2, 3

Myersville Citizens for a Rural Cmty., Inc. v.

FERC, 783 F.3d 1301 (D.C. Cir. 2015) ............................... 4

Natural Gas Pipeline Negotiated Rate Policies &

Practices, 104 F.E.R.C. ¶ 61,134 (2003), on reh’g,

114 F.E.R.C. ¶ 61,042 (2006) ............................................... 3

Schneidewind v. ANR Pipeline Co., 485 U.S. 293

(1988) ...................................................................................... 2

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ...................... 7

Sugar Cane Growers Coop. v. Veneman, 289 F.3d 89

(D.C. Cir. 2002) ................................................................... 10

Summers v. Earth Island Inst., 555 U.S. 488 (2009) ......... 11

Texas v. United States, 809 F.3d 134 (5th Cir. 2015),

aff ’d by an equally divided Court, 136 S. Ct. 2271

(2016) .................................................................................... 12

Transcontinental Gas Pipe Line Co., LLC,

164 F.E.R.C. ¶ 61,236 (2018) .................................................. 5

Wisniewski v. United States, 353 U.S. 901 (1957) ............. 12

Wyoming v. United States Dep’t of Interior,

674 F.3d 1220 (10th Cir. 2012) ........................................... 10

Constitution, statutes, regulations, and rule:

U.S. Const. Art. III ............................................. 6, 7, 9, 11, 12

Clean Air Act, 42 U.S.C. 7401 et seq. ................................... 10

Natural Gas Act, ch. 556, 52 Stat. 821 (15 U.S.C. 717

et seq.)..................................................................................... 1

§ 4, 52 Stat. 822 (15 U.S.C. 717c) ......................... 2, 3, 5, 8

§ 7, 52 Stat. 824 (15 U.S.C. 717(b)) .................................. 2

V

Statutes, regulations, and rule—Continued:

Page

§ 7(c), 52 Stat. 825 (15 U.S.C. 717f(c)) ............................. 2

15 U.S.C. 717c(a) ............................................................... 3

15 U.S.C. 717f(e) ................................................................ 2

15 U.S.C. 717n(e) ............................................................... 3

15 U.S.C. 717r .................................................................... 3

15 U.S.C. 717r(a) ............................................................... 4

15 U.S.C. 717r(b) ............................................................... 4

N.C. Gen. Stat. (2017):

§ 62-2 ................................................................................... 4

§ 62-32 ................................................................................. 4

§ 62-36.01 ............................................................................ 4

§ 62-133.4 ............................................................................ 4

18 C.F.R.:

Section 385.214(a) .............................................................. 3

Section 385.214(a)(2) ......................................................... 3

Section 385.214(a)(3) ......................................................... 3

D.C. Cir. R. 36(e)(2) ............................................................... 11

In the Supreme Court of the United States

No. 19-42

NORTH CAROLINA UTILITIES COMMISSION, PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The judgment of the court of appeals (Pet. App. 1a4a) is not published in the Federal Reporter but is reprinted at 761 Fed. Appx. 9. The orders of the Federal

Energy Regulatory Commission (Pet. App. 5a-344a) are

reported at 156 F.E.R.C. ¶ 61,022, 156 F.E.R.C.

¶ 61,092, 158 F.E.R.C. ¶ 61,125, 161 F.E.R.C. ¶ 61,211,

161 F.E.R.C. ¶ 61,212, and 161 F.E.R.C. ¶ 61,250.

JURISDICTION

The judgment of the court of appeals was entered on

April 3, 2019. The petition for a writ of certiorari was

filed on July 2, 2019. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. The Natural Gas Act (NGA or Act), ch. 556,

52 Stat. 821 (15 U.S.C. 717 et seq.), provides the Federal

(1)

2

Energy Regulatory Commission (FERC or Commission) with exclusive authority to regulate wholesale

sales and transportation of natural gas in interstate

commerce. 15 U.S.C. 717(b); see Schneidewind v. ANR

Pipeline Co., 485 U.S. 293, 300-301 (1988). That authority includes determining whether to approve proposed

interstate natural gas pipeline facilities. See 15 U.S.C.

717f(c). To construct, operate, or expand such a pipeline, a company must first obtain from FERC a “certificate of public convenience and necessity,” issued under

Section 7(c) of the NGA, ibid. See Schneidewind,

485 U.S. at 302-303. FERC may issue such a certificate

only if it finds that the proposed facility “is or will be

required by the present or future public convenience

and necessity.” 15 U.S.C. 717f(e).

When FERC grants a certificate of public convenience and necessity, it also approves an initial costbased recourse rate that must be available to pipeline

customers, known as shippers, that seek to transport

gas over the pipeline’s facilities. See Pet. App. 141a,

159a; see also Missouri Pub. Serv. Comm’n v. FERC,

601 F.3d 581, 583 (D.C. Cir. 2010) (Missouri II). FERC

applies a “public interest” standard to initial recourse

rates, Missouri Pub. Serv. Comm’n v. FERC, 337 F.3d

1066, 1068 (D.C. Cir. 2003) (Missouri I) (citing Atlantic

Ref. Co. v. Public Serv. Comm’n, 360 U.S. 378, 391

(1959)), and its policy is to set the initial recourse rate

according to the pipeline’s rate of return from its most

recent general rate case, filed pursuant to Section 4 of

the NGA, 15 U.S.C. 717c. Pet. App. 159a & n.60. The

initial rate therefore is based on an estimate of the pipeline’s projected costs on the new facilities, which is in

turn based on the pipeline’s past costs on its existing

infrastructure. See ibid. The initial rate is temporary:

3

It applies “ ‘to protect the public interest until the regular rate setting provisions’ [of § 4 of the NGA, 15 U.S.C.

717c,] . . . come into play.” Missouri II, 601 F.3d at

583 (quoting Algonquin Gas Transmission Co. v. Federal Power Comm’n, 534 F.2d 952, 956 (D.C. Cir. 1976)).

By contrast to the “public interest” standard FERC

employs for initial recourse rates, Section 4 requires

regular rates to be “just and reasonable,” 15 U.S.C.

717c(a)—a more demanding standard. See Missouri I,

337 F.3d at 1070.

Although a pipeline’s Section 7(c) certificate includes

an approved initial recourse rate, shippers do not necessarily pay that rate during the period in which it is in

effect. A pipeline may agree to a negotiated rate with

shippers, so long as the shippers have the option of paying the recourse rate instead. See Natural Gas Pipeline Negotiated Rate Policies & Practices, 104 F.E.R.C.

¶ 61,134, at 61,482 (2003), on reh’g, 114 F.E.R.C.

¶ 61,042 (2006). Negotiated rates are filed with the

Commission for its approval. Id. at 61,186-61,187;

114 F.E.R.C. ¶ 61,042, at 61,123.

b. FERC regulations establish two tracks for intervening as a party in a Section 7 proceeding before the

Commission.

See 15 U.S.C. 717n(e); 18 C.F.R.

385.214(a). A state utility commission—like petitioner

here—may intervene as of right by filing a notice with

FERC. 18 C.F.R. 385.214(a)(2). Other entities must file

a motion with FERC seeking leave to intervene.

18 C.F.R. 385.214(a)(3).

FERC decisions relating to the issuance of certificates of public convenience and necessity are subject to

judicial review under a framework set forth in 15 U.S.C.

717r. Once FERC issues an order granting or denying

such a certificate, any party to the proceeding that is

4

“aggrieved” by the order may seek rehearing with the

Commission. 15 U.S.C. 717r(a). A party that has sought

rehearing but remains aggrieved (for example, because

the Commission has denied rehearing) may petition for

judicial review in the United States Court of Appeals

for the D.C. Circuit, or in an appropriate regional court

of appeals. 15 U.S.C. 717r(b).

2. In March 2015, Transcontinental Gas Pipe Line

Company (Transco) filed three applications for certificates of public convenience and necessity to construct

and operate natural gas pipeline facilities in the eastern

United States. Pet. App. 2a; see id. at 5a, 91a, 136a.

Transco explained that it had executed binding precedent agreements with shippers for all capacity on each

of the proposed pipelines. Id. at 8a, 93a, 142a-143a; see

Myersville Citizens for a Rural Cmty., Inc. v. FERC,

783 F.3d 1301, 1310 (D.C. Cir. 2015) (“A precedent

agreement is a long-term contract subscribing to expanded natural gas capacity.”). Each of those shippers

agreed to pay a negotiated rate, rather than Transco’s

proposed initial recourse rate set forth in its applications. Pet. App. 8a, 94a n.5, 144a.

Petitioner is a North Carolina agency that regulates

the sale and transportation of natural gas in North Carolina. See N.C. Gen. Stat. §§ 62-2, 62-32, 62-36.01,

62-133.4 (2017). Petitioner (among others) intervened

as a party in all three Transco certificate proceedings.

Pet. App. 67a, 121a, 144a; CP-15-117 Notice of Intervention (FERC Apr. 22, 2015). Notwithstanding Transco’s

representation that none of the shippers would pay the

proposed recourse rates, petitioner challenged those

rates as unreasonable. Pet. App. 82a, 130a-131a, 281a.

Petitioner did not dispute that Transco’s use of the

specified pre-tax return most recently approved in a

5

Section 4 rate case was consistent with Commission policy. See, e.g., id. at 84a. Instead, petitioner pointed out

that the prior rate case was 14 years old, and it contended that the rates approved in the current proceedings should take into account changes in financial markets since that time. Id. at 82a.

In July 2016, August 2016, and February 2017, the

Commission issued Transco three conditional certificates of public convenience and necessity. Pet. App. 5a,

91a, 136a. In those orders, the Commission approved

recourse rates it determined met the NGA’s public interest standard, rejecting petitioner’s challenge to

Transco’s use of the pre-tax return from its most recently approved Section 4 rate case. See id. at 16a-26a,

108a-109a, 165a-166a.

Petitioner and the New York State Public Service

Commission (collectively, State Commissions) sought

rehearing. Pet. App. 81a, 130a-131a, 275a. FERC denied the petitions, again finding that the use of a pretax return from Transco’s most recent Section 4 rate

case was proper. Id. at 83a-86a, 131a-134a, 282a-285a.

In both its original orders and its orders denying rehearing, FERC pointed out that Transco would be required to file an NGA Section 4 rate case by August 31,

2018 that would establish permanent rates to replace

the initial recourse rates. Pet. App. 22a-23a, 86a, 106a,

134a, 162a-163a, 285a. Transco filed its Section 4 rate

case on that date, see RP18-1126-000 Tariff Filing

(FERC Aug. 31, 2018), and that proceeding remains

pending, see Transcontinental Gas Pipe Line Co., LLC,

164 F.E.R.C. ¶ 61,236, at 62,347, 62,353 (2018) (accepting Transco’s proposed Section 4 rates on September

6

28, 2018, subject to the outcome of hearing and settlement judge procedures); see generally FERC Docket

No. RP18-1126-000.

3. The State Commissions sought judicial review of

the series of six orders certificating the pipeline facilities and denying rehearing. Pet. App. 2a. As they had

before FERC, the State Commissions contended that

Transco’s recourse rates relied on an outdated and inflated pre-tax return, which allegedly would result in

ratepayers in their States paying unreasonably high

rates for natural gas. Id. at 2a-3a.

In a unanimous, unpublished judgment, the court of

appeals dismissed the State Commissions’ petition for

review for lack of Article III standing. Pet. App. 1a-4a.

The court explained that the State Commissions failed

to show a concrete and particularized injury in fact. Id.

at 3a. The court observed that petitioner merely “ ‘assume[d]’ that ratepayers in [North Carolina] will use

the facilities certificated on” one of the three projects,

but had not demonstrated a “ ‘substantial probability’ ”

that capacity from that project would flow into the

State, let alone that North Carolina ratepayers would

pay higher rates because of the project. Ibid. (quoting

Kansas Corp. Comm’n v. FERC, 881 F.3d 924, 930 (D.C.

Cir. 2018), and Pet. Br. 31). With respect to the other

two projects, the court found that the State Commissions “offer[ed] no evidence of injury” at all. Ibid. The

court determined that “[a]ny harm is therefore either

non-existent or ‘conjectural or hypothetical,’ which does

not suffice to demonstrate injury in fact.” Ibid. (quoting

Kansas Corp. Comm’n, 881 F.3d at 930).

4. Neither petitioner nor the New York State Public

Service Commission sought rehearing or rehearing en

7

banc. Only petitioner filed a petition for a writ of certiorari.

ARGUMENT

The court of appeals correctly determined that petitioner lacked Article III standing to challenge the Commission’s certification of Transco’s pipeline facilities.

Its unpublished disposition of the petition for review

does not conflict with any decision of this Court or of

any other court of appeals. Further review is not warranted.

1. This Court has explained that “the ‘irreducible

constitutional minimum’ of standing consists of three elements.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547

(2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992)). “The plaintiff must have (1) suffered

an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to

be redressed by a favorable judicial decision.” Ibid. To

establish injury in fact, “a plaintiff must show that he or

she suffered ‘an invasion of a legally protected interest’

that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Id. at 1548

(quoting Lujan, 504 U.S. at 560).

The court of appeals correctly held that petitioner

failed to demonstrate that it suffered an injury in fact

from the pipeline certifications. Petitioner argued that

the Commission’s orders approving allegedly “overstated” initial recourse rates harmed North Carolina

ratepayers because those recourse rates failed to “provide the necessary check on the pipeline’s market power

during the establishment of the negotiated rates.” Pet.

C.A. Br. 30. But petitioner failed to show a “substantial

probability” that North Carolina ratepayers would be

harmed by the recourse rates. Pet. App. 3a (quoting

8

Kansas Corp. Comm’n v. FERC, 881 F.3d 924, 930 (D.C.

Cir. 2018)). Petitioner did not show that any North Carolina ratepayers would pay higher rates due to the certificated projects, or that subscribed capacity from any

of the projects would even be delivered to North Carolina. See ibid. Instead, petitioner simply “ ‘assume[d]’

that ratepayers in [North Carolina] w[ould] use the facilities certificated” by the Commission. Ibid. (quoting

Pet. C.A. Br. 31).

Moreover, petitioner failed to show that any

ratepayers—whether located in North Carolina or

elsewhere—could be harmed by the challenged initial

recourse rates. By the time FERC approved those

rates, each of the three projects was fully subscribed by

shippers who had agreed to pay negotiated rates. Pet.

App. 8a, 93a, 94a n.5, 142a-144a. While an initial recourse rate might in some circumstances influence parties’ negotiated rates, petitioner did not show that the

later-approved recourse rates in this case tainted the

negotiated rates that already had been agreed to. See

Gov’t C.A. Br. 27-29 (making this point in terms of

traceability and redressability).

2. Petitioner does not appear to dispute the court of

appeals’ determination that it did not satisfy Article

III’s injury-in-fact requirement. See Pet. 7-12. Instead, relying on Massachusetts v. EPA, 549 U.S. 497

(2007), petitioner contends (Pet. 7-12) that the court

erred in failing to afford it “special solicitude” in the

standing analysis. See Massachusetts, 549 U.S. at 520.

Specifically, petitioner argues (Pet. 7, 9-10) that because Section 4 certification decisions assertedly implicate its quasi-sovereign interests, and Congress has

granted state commissions a right to intervene in Commission proceedings and then, as a party, to challenge

9

the Commission’s decision, petitioner was relieved of

the obligation “to demonstrate injury-in-fact that is

traceable to the challenged action and redressable by

the court.” Pet. i-ii.

a. Petitioner misconstrues this Court’s decision in

Massachusetts. In that case, private organizations,

joined by Massachusetts and other state and local government intervenors, challenged the Environmental

Protection Agency’s determination not to issue mandatory regulations to address global climate change.

549 U.S. at 514. This Court determined that Massachusetts had standing. Id. at 516-526. While the Court considered Massachusetts’ status as a sovereign State to be

“of considerable relevance” to the standing inquiry, it

did not relieve the State of the need to demonstrate a

concrete and particularized injury in fact. Id. at 518;

see id. at 521-523. Instead, the Court recognized that

Massachusetts and its residents had suffered a “concrete” injury: “rising seas” that had “already begun to

swallow Massachusetts’ coastal land.” Id. at 519, 522.

And the Court observed that “[b]ecause the Commonwealth ‘owns a substantial portion of the state’s coastal

property,’ it has alleged a particularized injury in its capacity as a landowner.” Id. at 522 (citation omitted).

Thus, contrary to petitioner’s contention (Pet. 8-12),

Massachusetts’ “special solicitude” for a State in that

case, 549 U.S. at 520, did not supplant the traditional

Article III standing inquiry. Instead, that “special solicitude” reflected a State’s unique right to sue to protect its quasi-sovereign interests, including its “desire

to preserve its sovereign territory” and “ ‘the earth and

air within its domain.’ ” Id. at 519 (quoting Georgia v.

Tennessee Copper Co., 206 U.S. 230, 237 (1907)). It is

well-established, however, that a State still must show

10

a concrete and particularized injury to its interests. See

id. at 518-519, 522; see also Coalition for Responsible

Regulation, Inc. v. EPA, 684 F.3d 102, 148 (D.C. Cir.

2012) (per curiam) (“[N]othing in [Massachusetts] remotely suggests that states are somehow exempt from

the burden of establishing a concrete and particularized

injury in fact.”), aff ’d in part, rev’d in part sub nom.

Utility Air Regulatory Grp. v. EPA, 573 U.S. 302

(2014); Wyoming v. United States Dep’t of Interior,

674 F.3d 1220, 1238 (10th Cir. 2012) (recognizing that,

under Massachusetts, States must still establish a concrete injury); Delaware Dep’t of Natural Res. & Envtl.

Control v. FERC, 558 F.3d 575, 579 n.6 (D.C. Cir. 2009)

(“[S]pecial solicitude does not eliminate the state petitioner’s obligation to establish a concrete injury, as Justice Stevens’ opinion [for the majority in Massachusetts] amply indicates.”).

b. Nor does a State’s right to intervene in agency

proceedings and then seek judicial review relieve it of

the need to demonstrate injury in fact. See Pet. 10-11.

In Massachusetts, the Court observed that the Clean

Air Act, 42 U.S.C. 7401 et seq., afforded States the right

to challenge EPA’s rejection of a petition for a rulemaking to curb greenhouse gas emissions. 549 U.S. at 520.

And the Court stated that “a litigant to whom Congress

has ‘accorded a procedural right to protect his concrete

interests * * * can assert that right without meeting all

the normal standards for redressability and immediacy.’ ” Id. at 517-518 (quoting Lujan, 504 U.S. at 572

n.7). That is because vindication of a procedural right

may result in agency action that redresses the alleged

harm. See id. at 518 (citing Sugar Cane Growers Coop.

v. Veneman, 289 F.3d 89, 94-95 (D.C. Cir. 2002)). But

the procedural right still must be tethered to a concrete

11

injury: “deprivation of a procedural right without some

concrete interest that is affected by the deprivation—a

procedural right in vacuo—is insufficient to create Article III standing.” Summers v. Earth Island Inst.,

555 U.S. 488, 496 (2009). Thus, while the existence of a

procedural right “can loosen the strictures of the redressability prong of [the] standing inquiry,” “the requirement of injury in fact is a hard floor of Article III

jurisdiction.” Id. at 497.

3. Contrary to petitioner’s assertion (Pet. 12-14), the

unpublished, non-precedential decision below does not

implicate any inter-circuit conflict on the proper application of Massachusetts. See D.C. Cir. R. 36(e)(2). In

fact, the cases on which petitioner relies confirm that

the special solicitude accorded the State in Massachusetts did not eliminate the need for a State to demonstrate an injury in fact.

In Center for Biological Diversity v. United States

Department of Interior, 563 F.3d 466 (2009), the D.C.

Circuit “assum[ed] arguendo” that the tribal-government

petitioner was “a sovereign that might be entitled to

‘special solicitude’ under Massachusetts.” Id. at 477.

Nonetheless, the court determined that the tribal government failed to show an injury to its own interests and

therefore lacked Article III standing. Ibid. In reaching

that conclusion, the court observed that, in Massachusetts, the State “had shown a sufficiently particularized

injury because Massachusetts had alleged that its particular shoreline had actually been diminished by the effects of climate change.” Id. at 476; accord Government

of Manitoba v. Bernhardt, 923 F.3d 173, 182 (D.C. Cir.

2019) (holding that State lacked standing and distinguishing Massachusetts, in which the State “alleged its

own harm to establish an injury-in-fact”); Kansas Corp.

12

Comm’n, 881 F.3d at 929-930 (requiring a state utilities

commission to satisfy the Lujan Article III standing

test). *

Similarly, in Texas v. United States, 809 F.3d 134

(2015), aff ’d by an equally divided Court, 136 S. Ct. 2271

(2016), the Fifth Circuit assessed States’ standing to

challenge the Deferred Action for Parents of Americans

and Lawful Permanent Residents (DAPA) program.

Although the court determined that the state plaintiffs

were entitled to “ ‘special solicitude’ ” under Massachusetts, it required them to “show an injury that is ‘concrete, particularized, and actual or imminent.’ ” Id. at

150-151 (quoting Clapper v. Amnesty Int’l USA,

568 U.S. 398, 409 (2013)). The court determined that

Texas had met that burden because issuing drivers’ licenses to DAPA beneficiaries would require the State

to incur “millions of dollars of losses.” Id. at 152-153;

see id. at 155-156.

Nor does the Second Circuit’s decision in Connecticut v. American Electric Power Co., 582 F.3d 309

(2009), aff ’d on jurisdiction by an equally divided Court,

564 U.S. 410, 420 (2011), hold that a State need not

demonstrate a concrete and particularized injury in

fact. See Pet. 13. To the contrary, the court determined

that “all of the plaintiffs”—including the States—“met

the Lujan test for standing.” American Elec. Power

Citing Judge Brown’s concurrence in Arpaio v. Obama, 797 F.3d

11 (D.C. Cir. 2015), cert. denied, 136 S. Ct. 900 (2016), petitioner

suggests (Pet. 13) that the D.C. Circuit is internally divided regarding the relationship between Lujan and Massachusetts. But Judge

Brown acknowledged that under Massachusetts, a State must

demonstrate a “concrete injury.” 797 F.3d at 27. In any event, a

concurrence could not create an intra-circuit conflict, and an intracircuit conflict would not warrant this Court’s review. See Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam).

*

13

Co., 582 F.3d at 338. Although the court suggested that

Massachusetts’ discussion of standing “arguably muddled state proprietary and parens patriae standing,” it

declined to decide whether a State relying on the latter

theory must meet Lujan’s requirements. Id. at 337-338.

Moreover, to the extent petitioner here relies on a

parens patriae theory of standing, its allegations have

little in common with those at issue in American Electric Power Co. There, the court observed that the

States had “adequately” “alleged that the injuries resulting from carbon dioxide emissions will affect virtually their entire populations.” Id. at 338. By contrast,

here, the court of appeals determined that “[a]ny harm”

to North Carolina “end-users” was “either non-existent

or ‘conjectural or hypothetical.’ ” Pet. App. 3a (citation

omitted).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JAMES P. DANLY

General Counsel

ROBERT H. SOLOMON

Solicitor

JARED B. FISH

Attorney

Federal Energy Regulatory

Commission

SEPTEMBER 2019

NOEL J. FRANCISCO

Solicitor General