Amicus Curiae Brief — Turlock Irrigation District, et al., Petitioners v. Federal Energy Regulatory Commission, et al.

No. 22-616

IN THE

Supreme Court of the United States

________________________________

TURLOCK IRRIGATION DISTRICT and

MODESTO IRRIGATION DISTRICT,

Petitioners,

v.

FEDERAL ENERGY REGULATORY COMMISSION, et al.,

Respondents.

________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

________________________________

BRIEF OF THE INTERSTATE NATURAL GAS

ASSOCIATION OF AMERICA AND THE AMERICAN

PETROLEUM INSTITUTE AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

________________________________

ERICA N. PETERSON

HUNTON ANDREWS KURTH

LLP

2200 Pennsylvania

Avenue, NW, Suite 900

Washington, D.C. 20037

(202) 955-1500

GEORGE P. SIBLEY, III

Counsel of Record

HUNTON ANDREWS KURTH

LLP

951 East Byrd Street

Richmond, VA 23219

gsibley@HuntonAK.com

(804) 788-8200

February 6, 2023

Counsel for Amici Curiae

i

QUESTION PRESENTED

Whether a State can avoid “waiv[ing]” its one-year

“period of time” in which “to act” on a “request for

certification” under section 401 of the Clean Water Act, 33

U.S.C. § 1341(a)(1)—thus rendering Section 401’s one-year

rule meaningless—by declaring in pro forma letters every

364 days that the request is “denied” and must be

resubmitted if the applicant ever wants to obtain a Section

401 certification, and then repeating this every 364 days

for as many years as a State wishes to delay.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ...................................................i

INTEREST OF AMICI CURIAE ........................................ 1

SUMMARY OF ARGUMENT ............................................. 2

REASONS FOR GRANTING THE PETITION ................. 3

I.

Interstate Pipeline Projects Rely On A

Predictable And Efficient Section-401

Process....................................................................... 3

A.

Federal agencies are primarily responsible

for regulatory review and approval of

interstate natural gas pipeline projects ........ 4

B.

The NGA preserves an important, but

confined, role for States ................................. 6

C.

INGAA and API members routinely engage

the section-401 process for a variety of

projects ........................................................... 9

II.

The Decision Below All But Eliminates

Section 401’s One-Year Time Limit ....................... 10

III.

Allowing States To Circumvent Section 401’s

One-Year Limitation Has Significant

Practical Effects For Interstate Natural Gas

Pipeline Projects ..................................................... 12

CONCLUSION .................................................................. 18

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Hoopa Valley Tribe v. FERC,

913 F.3d 1099 (D.C. Cir. 2019) .................... 8, 13, 15, 16

Missouri ex rel. Barrett v. Kan. Nat. Gas Co.,

265 U.S. 298 (1924) ........................................................ 7

Mountain Valley Pipeline LLC v. N. Carolina

Dep’t Envtl. Quality,

990 F.3d 818 (4th Cir. 2021) .................................... 8, 18

N. Nat. Gas Co. v. State Corp. Comm’n of

Kan.,

372 U.S. 84 (1963) .......................................................... 4

N.W. Cent. Pipeline Corp. v. State Corp.

Comm’n of Kan.,

489 U.S. 493 (1989) ........................................................ 7

N.Y. State Dep’t of Envtl. Conservation v.

FERC,

884 F.3d 450 (2d Cir. 2018) ......................................... 14

N.Y. State Dep’t of Envtl. Conservation v.

FERC,

991 F.3d 439 (2d Cir. 2021) ......................................... 14

iv

Oneok, Inc. v. Learjet, Inc.,

575 U.S. 373 (2015) ........................................................ 7

PennEast Pipeline Co. v. New Jersey,

141 S. Ct. 2244 (2021) .................................................... 9

Phillips Petroleum Co. v. Wisconsin,

347 U.S. 672 (1954) ........................................................ 7

Pub. Util. Comm’n of R.I. v. Attleboro Steam

& Elec. Co.,

273 U.S. 83 (1927) .......................................................... 7

Schneidewind v. ANR Pipeline Co.,

485 U.S. 293 (1988) ........................................................ 4

Sierra Club v. State Water Control Bd.,

898 F.3d 383 (4th Cir. 2018) ........................................ 13

Statutes

15 U.S.C. § 717 .................................................................... 7

15 U.S.C. § 717b .................................................................. 8

15 U.S.C. § 717f ......................................................... 4, 5, 18

15 U.S.C §§ 717n ................................................................. 5

16 U.S.C. § 1536 .................................................................. 6

33 U.S.C. § 1341 ............................................................ 8, 13

33 U.S.C. § 1344 .................................................................. 5

v

42 U.S.C. § 4332 .................................................................. 5

42 U.S.C. § 4370m ............................................................... 5

54 U.S.C. § 306108 .............................................................. 6

Other Authorities

10 C.F.R. §§ 51.20, 51.21 ..................................................... 5

115 Cong. Rec. 9264 (1969) ............................................. 8, 9

E. Placido & S. Toteff, Wash. State Dep’t of

Ecology and Cowlitz Cty., Millennium

Bulk Terminal-Longview SEPA Vol. 1:

Final Environmental Impact Statement

(Apr. 28, 2017),

https://apps.ecology.wa.gov/publications/d

ocuments/1706013.pdf ................................................. 17

H.R. Rep. No. 75-709 (1937)................................................ 7

Letter from Maia D. Bellon, Director,

Washington Department of Ecology, to

Kristin Gaines, Millennium Bulk

Terminals-Longview, LLC (Sept. 26,

2017), https://ecology.wa.gov/AssetCollections/Doc-Assets/RegulationsPermits/Environmental-review/SEPAMillennium-Bulk-Terminals/PermitDenial-Millennium-Bulk-Terminals ........................... 16

vi

Letter from S. Daniel Smith, Director,

Division of Water Resources, North

Carolina Department of Environmental

Quality, to Kathy Salvador, Mountain

Valley Pipeline LLC (Aug. 11, 2020),

https://deq.nc.gov/pipelines/2018-1638v3mvp-southgate-rockingham-alamancedenial/download. .......................................................... 18

Letter from Thomas Berkman, Deputy

Commissioner and General Counsel,

NYSDEC, to Georgia Carter, Vice

President and General Counsel,

Millennium Pipeline Company LLC and

John Zimmer, Pipeline/LNG Market

Director, TRC Environmental Corp. (Aug.

30, 2017), http://climatecasechart.com/wpcontent/uploads/sites/16/casedocuments/2017/20170830_docket-3-33990007100001_letter.pdf. ................................................ 17

S. Rep. No. 92-414 (1971) ................................................ 7, 8

S. Rep. No. 75-1162 (1937) .................................................. 7

U.S. Government Accountability Office,

Pipeline Permitting: Interstate and

Intrastate Natural Gas Permitting

Processes Include Multiple Steps, and

Time Frames Vary, GAO Report 13-221,

at 26 (Feb. 2013)............................................................. 6

1

INTEREST OF AMICI CURIAE1

The Interstate Natural Gas Association of America

(INGAA) is a non-profit trade association representing 26

of the interstate natural gas transmission pipeline

companies operating in the United States. INGAA’s

members, which constitute approximately two-thirds of the

interstate pipeline industry, operate a network of

approximately 200,000 miles of pipelines.

The American Petroleum Institute (API) is a

nationwide, non-profit trade association that represents all

facets of the natural gas and oil industries. API’s nearly

600 member companies include large integrated

companies, as well as exploration and production, refining,

marketing, pipeline, and marine businesses, and service

and supply firms. The interstate pipeline network serves

as an indispensable link between natural gas producers

and the American homes and businesses that use the fuel

for heating, cooking, generating electricity, and

manufacturing a wide variety of goods.

Members of API and INGAA routinely request state

certifications under section 401 of the Clean Water Act

(CWA) to obtain federal approval for projects ranging from

new pipeline construction to routine maintenance. These

members are adversely affected when States use their

section-401 authority not to ensure compliance with state

All parties, including counsel for Respondents, received

timely notice of the intent of the Interstate Natural Gas Association

and the American Petroleum Institute to file this brief under Rule 37.2.

Pursuant to Supreme Court Rule 37.6, amici curiae state that no

counsel for any party authored this brief in whole or in part and no

entity or person, aside from amici curiae, their members, or their

counsel, made any monetary contribution intended to fund the

preparation or submission of this brief.

1

2

federally-approved water quality standards but to secondguess federal policy implemented by federal licensing

authorities. The Federal Energy Regulatory Commission

(FERC) order, and the decision below upholding it, allows

States to delay interstate natural gas projects indefinitely

by labeling a request for certification “denied” every 364

days, while directing the requester to resubmit the same

request for as many years as the State desires. The result

is that a State can veto a natural gas pipeline project

without ever deciding, on the merits, that the project

actually violates the State’s water quality standards.

Members of API and INGAA know from experience that if

permitted to do so, some States are likely to continue to use

such tactics and prevent the construction of critical natural

gas projects.

SUMMARY OF ARGUMENT

The question presented is one of nationwide importance

affecting numerous industries throughout the country,

including the hydropower and natural gas sectors. INGAA

and API members, who represent a significant portion of

the natural gas industry, depend on a predictable and

efficient section-401 certification process to achieve federal

authorization for construction and maintenance projects

throughout the country. The federal licensing process

under the Natural Gas Act (NGA) gives FERC primary

approval authority for interstate natural gas projects but

also reserves an important but limited role for States,

including the States’ section-401 water quality certification

authority. Although States are tasked with the important

role of ensuring federally-licensed projects comply with

water quality standards, the statute does not give States

carte blanche. The State must complete its review within a

maximum of one year and must confine its review to water

quality issues.

3

FERC’s order, and the decision below upholding it,

renders a nullity these limits Congress placed on State

authority under section 401. Under those decisions, States

can delay certification indefinitely, and thus effectively

veto projects without ever determining that the project will

have any adverse water quality effects. This effectively

usurps FERC’s authority to approve projects that serve the

public convenience and necessity.

Members of API and INGAA have firsthand experience

with States circumventing the limitations on their section401 authority. This experience shows that unless the

decision below is reversed, States are likely to continue

abusing the section-401 process by delaying certification

indefinitely. As a result, numerous critical construction

and maintenance projects will not be completed. This

Court’s intervention is needed to prevent these abuses from

continuing.

REASONS FOR GRANTING THE PETITION

I.

Interstate Pipeline Projects Rely On A

Predictable And Efficient Section-401

Process.

Federal agencies are the primary authorities

responsible for the regulatory approval of interstate

natural gas pipeline projects. The NGA makes FERC the

primary regulator of such projects. FERC leads the federal

approval process, which involves a number of

environmental impact analyses and coordination among

numerous federal agencies.

The NGA reserves to the States the opportunity under

CWA section 401 to certify that interstate natural gas

pipeline projects will satisfy state water quality standards.

4

But that section-401 authority is limited—it must be

completed within “a reasonable period of time not to exceed

one year” and must focus on federally-approved water

quality standards. Enforcement of the one-year statutory

limit is critical for API and INGAA members who regularly

seek section-401 certification for interstate natural gas

pipeline construction and maintenance projects.

A.

Federal agencies are primarily

responsible for regulatory review and

approval of interstate natural gas

pipeline projects.

The NGA provides a “‘comprehensive scheme of federal

regulation of all wholesales of natural gas in interstate

commerce.’” Schneidewind v. ANR Pipeline Co., 485 U.S.

293, 300 (1988) (quoting N. Nat. Gas Co. v. State Corp.

Comm’n of Kan., 372 U.S. 84, 91 (1963)). The NGA “confers

upon FERC exclusive jurisdiction over the transportation

and sale of natural gas in interstate commerce for resale.”

Id. at 300–01. A natural gas company must obtain from

FERC a “‘certificate of public convenience and necessity’

before it constructs, extends, acquires, or operates any

facility for the transportation or sale of natural gas in

interstate commerce.” Id. at 302 (quoting 15 U.S.C.

§ 717f(c)(1)(A)).

As part of the licensing process for interstate natural

gas pipeline projects, FERC must evaluate environmental

impacts under the National Environmental Policy Act

(NEPA) in coordination with other federal agencies. 15

U.S.C. §§ 717f(c), 717n(b). FERC is the lead agency for

purposes of NEPA reviews, 15 U.S.C. § 717n(b)(1), and is

responsible for coordinating with all federal agencies

involved to prepare the required environmental analyses—

5

either an environmental impact statement (EIS) or

environmental assessment (EA), 42 U.S.C. §§ 4332(C),

4370m(15); 10 C.F.R. §§ 51.20, 51.21. FERC’s NEPA review

includes an extensive analysis of the proposed pipeline’s

potential effects on water quality, and States routinely

participate in that process to identify concerns related to

water quality and propose steps to mitigate those concerns.

In addition to a certificate of convenience and necessity

from FERC, separate CWA permits are commonly required

for interstate natural gas projects. Due to the linear nature

of pipelines, pipeline construction and maintenance often

unavoidably involves crossing wetlands and streams,

requiring permitting from the United States Army Corps

of Engineers (the Corps) under CWA section 404. See 33

U.S.C. § 1344. Although FERC may issue the certificate of

public convenience and necessity before all federal permits

and authorizations, including any section-404 permits, are

complete, it will not grant final authority to construct the

pipeline without these authorizations.

FERC approval also frequently requires review and

approval under other federal laws, such as the Endangered

Species Act (ESA) and National Historic Preservation Act

(NHPA). The ESA requires federal agencies to ensure that

any action they authorize, fund, or carry out is not likely to

jeopardize the continued existence of a species listed as

threatened or endangered under the Act. 16 U.S.C.

§ 1536(a)(2). In some circumstances, this process requires

consultation with the Fish and Wildlife Service or the

National Marine Fisheries Service. See ibid. In addition,

section 106 of the NHPA requires that federal agencies

identify and consider the effect their actions may have on

historic properties prior to granting approval for any

license. 54 U.S.C. § 306108.

6

The process of obtaining federal approval for an

interstate natural gas pipeline project can be a long one.

On average, it takes 558 days from the time the applicant

first begins the FERC approval process until FERC issues

the certificate of convenience and necessity.2 The amount

of time that the process takes depends on whether section404 permits are required, the extent of consultation

required under the ESA, and the amount of overlap

between federal and NGA-permissible state environmental

reviews.

B.

The NGA preserves an important, but

confined, role for States.

In enacting the NGA, Congress sought to fill a

regulatory gap left open by this Court’s decision that the

States lacked authority over interstate natural gas

transportation. Prior to the NGA, States regulated all

segments of the natural gas industry. Oneok, Inc. v.

Learjet, Inc., 575 U.S. 373, 378 (2015). Early in the 20th

century, however, this Court held that the Commerce

Clause forbids States from regulating the interstate

shipment and sale of gas for resale. Ibid. (citing Pub. Util.

Comm’n of R.I. v. Attleboro Steam & Elec. Co., 273 U.S. 83,

89–90 (1927) and Missouri ex rel. Barrett v. Kan. Nat. Gas

Co., 265 U.S. 298, 307–08 (1924)). Congress enacted the

NGA to fill the resulting regulatory gap. Ibid. (citing

Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 682–84,

n.13 (1954)); see also H.R. Rep. No. 75-709, at 1–2 (1937);

S. Rep. No. 75-1162, at 1–2 (1937).

2 U.S. Government Accountability Office, Pipeline Permitting:

Interstate and Intrastate Natural Gas Permitting Processes Include

Multiple Steps, and Time Frames Vary, GAO Report 13-221, at 26 (Feb.

2013).

7

In filling this gap, the NGA balances the roles of the

federal government, acting through FERC, and the States.

The NGA grants FERC jurisdiction over “the

transportation of natural gas in interstate commerce,” “the

sale in interstate commerce of natural gas for resale,” and

“natural-gas companies engaged in such transportation or

sale.” 15 U.S.C. § 717(b). Thus, it has long been recognized

that the NGA preempts State laws that may conflict with

this comprehensive federal authority of interstate natural

gas pipeline siting and construction. Oneok, 575 U.S. at

376. However, the statute also expressly reserves state

authority in certain limited areas. For example, the NGA

“expressly” provides that States retain jurisdiction over

intrastate transportation,

local

distribution

and

distribution facilities, and the production or gathering of

natural gas. N.W. Cent. Pipeline Corp. v. State Corp.

Comm’n of Kan., 489 U.S. 493, 507 (1989).

The NGA similarly preserves, in express terms, the

States’ role in the CWA section-401 certification process.

See 15 U.S.C. § 717b(d) (“Except as specifically provided in

this chapter, nothing in this chapter affects the rights of

States under . . . [the Clean Water Act]” (emphasis added)).

That means that where an interstate natural gas project

will result in a discharge into streams or wetlands, the

State must grant or waive certification before FERC can

authorize the project to proceed with construction. The

statute thus undoubtedly preserves the important role

States play in the permitting process—i.e., “to assure that

Federal licensing or permitting agencies cannot override

State water quality requirements,” S. Rep. No. 92-414, at

69 (1971), and to veto projects when they do so.

But as important as the States’ authority is—and, in

fact, because it is so powerful when invoked—it is also

8

limited in two critical ways. First, States can review only

whether the project will comply with applicable water

quality standards. 33 U.S.C. § 1341(a)(1); see also

Mountain Valley Pipeline LLC v. N. Carolina Dep’t Envtl.

Quality, 990 F.3d 818, 830–31 (4th Cir. 2021); S. Rep. No.

92-414, at 69. Second, States’ review is limited in duration.

The State must complete its review in a reasonable amount

of time, not to exceed one year. 33 U.S.C. § 1341(a)(1). A

State waives its certification authority if it “fails or refuses

to act on a request for certification, within a reasonable

period of time (which shall not exceed one year) after

receipt of such request.” Ibid.; see also Hoopa Valley Tribe

v. FERC, 913 F.3d 1099, 1103–04 (D.C. Cir. 2019) (“a full

year is the absolute maximum”). The State must “act in one

way or the other within the prescribed time.” 115 Cong.

Rec. 9264 (1969). In sum, although section 401 affords

States the important “authority . . . to act to deny a permit,”

S. Rep. No. 92-414, at 69, it does not permit a State to

“unreasonabl[y] delay” the permitting process, 115 Cong.

Rec. 9264.

Any relaxation of the limits Congress placed on the

States’ section-401 authority would upset the federal-State

balance Congress struck in the NGA. While the NGA

provides States a role in natural gas regulation when

appropriate, it also expressly limits the ability for States to

block projects FERC deems to be in the public interest. For

example, before 1947, the NGA did not provide a

mechanism for certificate holders to secure property rights

necessary to build pipelines. PennEast Pipeline Co. v. New

Jersey, 141 S. Ct. 2244, 2252 (2021). Natural gas companies

instead depended on state eminent domain powers, which

States often denied where the pipeline did not benefit local

residents. Ibid. That left certificate holders with “only an

illusory right to build” because they could not get the

9

necessary property rights to build. Ibid. In response,

Congress amended the NGA in 1947 to authorize

certificate holders to exercise federal eminent domain

power. Ibid.

Congress’s intent behind the NGA thus could not be

clearer. FERC has ultimate approval authority over

interstate natural gas projects, and States cannot impede

projects that serve the national interest except on narrowly

prescribed grounds.

C.

INGAA and API members routinely

engage the section-401 process for a

variety of projects.

Providing a safe, reliable, and affordable supply of

energy to consumers requires the construction and

maintenance of thousands of miles of linear pipelines.

These linear structures, which deliver energy over long

distances to neighborhoods and communities across the

country, must at times unavoidably cross wetlands and

other waters of the United States. As a result, project

proponents, including INGAA and API members, routinely

engage the section-401 process to obtain Corps permits

needed to construct a FERC-authorized project.

In the past five years, several API and INGAA members

have relied on federal authorizations subject to

certification under section 401 to construct hundreds of

miles of oil pipelines, natural gas pipelines refined product

pipelines, and natural gas liquids pipelines. These projects

traverse numerous States, including Arkansas, Colorado,

Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine,

Minnesota, Mississippi, Missouri, Montana, New

Hampshire, New Jersey, New York, North Dakota, Ohio,

10

Oklahoma, Pennsylvania, Texas, Utah, Virginia, West

Virginia, and Wisconsin. The experience of API and INGAA

members makes plain that the question presented in this

case is of nationwide importance.

A predictable and efficient section-401 certification

process is thus critical for API and INGAA members to

continue to build and maintain natural gas transportation

projects nationwide. Interstate natural gas projects are

typically conducted on tight schedules, meaning that the

ability to predict with some accuracy how long the process

of certification will take is important. A delay in the

permitting process can cause significant, project-killing

delays and prevent upgrades to vital natural gas

infrastructure and performance of critical and timesensitive maintenance activities.

II.

The Decision Below All But Eliminates

Section 401’s One-Year Time Limit.

Petitioners correctly explain that States can now delay

substantive review of a certification request indefinitely.

Pet. 17–19. FERC’s orders, affirmed by the D.C. Circuit,

allow a State wishing to avoid acting on any certification

request to “deny[]” the request in pro forma letters every

364 days, while directing the applicant to resubmit its

request. See Pet. App. 58a–60a. The State can repeat this

scheme each year indefinitely, effectively vetoing the

federal license without taking any substantive action on

the request.

Allowing a State to effectively veto an interstate

natural gas pipeline project, which FERC has determined

is in the public interest, without taking any substantive

action on the certification request is problematic for at

11

least four reasons. First, it renders a dead letter the plain

language of section 401’s one-year limitation. Second, it

undermines FERC’s authority to approve interstate

natural gas pipeline projects. Third, it upsets the balance

of federal and state authority in the natural gas industry

that Congress provided in the NGA. Fourth, it frustrates

the time and energy that the project proponent and federal

agencies committed to the approval process, including

numerous environmental reviews. As FERC Commissioner

Danly aptly put it in his dissent from the denial of

rehearing:

“[w]hether the Board explicitly suggests

withdrawal and resubmission, or styles its

suggestion as a denial without prejudice,

removing the applicant’s complicity, the

result is the same: the Board’s denial without

prejudice in this case ‘usurp[s] FERC’s control

over whether and when a federal license will

issue’ and is intended to override the waiver

provision ‘created to prevent a State from

indefinitely delaying a federal licensing

proceeding.’”

Pet. App. 33a.

12

III.

Allowing States To Circumvent Section 401’s

One-Year Limitation Has Significant

Practical Effects For Interstate Natural Gas

Pipeline Projects.

The effective elimination of the one-year limit is likely

to adversely affect natural gas pipeline projects. At best, it

will delay the completion of important projects to upgrade

vital natural gas infrastructure and critical time-sensitive

maintenance activities. Even States otherwise inclined to

grant certifications will use the denial-without-prejudice

loophole to buy more time. The result will be significant

delay in projects that already run on tight schedules and

involve approval from multiple agencies, further

increasing costs and threatening the ability to provide safe,

reliable, and affordable energy.

At worst, States can use the denial-without-prejudice

loophole to effectively veto such projects without acting on

the merits, thereby frustrating the policy choices made by

Congress and usurping the regulatory role Congress

assigned to FERC. INGAA and API members know from

experience that some States are likely to do just that.

Section 401 puts States to a choice—they can

participate in the process or they can waive their right to

do so. See Sierra Club v. State Water Control Bd., 898 F.3d

383, 388 (4th Cir. 2018) (“a state receiving a Section 401

application has four options in total: it may grant a

certificate without imposing any additional conditions;

grant it with additional conditions; deny it; or waive its

right to participate in the process.”). But if the State

chooses to participate, it must complete its work within a

reasonable period of time, not to exceed one year. 33 U.S.C.

§ 1341(a)(1); Hoopa Valley, 913 F.3d at 1103–04

13

(explaining that section 401 provides that “a full year is the

absolute maximum” amount of time for a State to act on “a

specific request.”). That is the express statutory condition

for State review under section 401.

In recent years, certain States have tried to have it both

ways. They want the ability to weigh in on major projects,

but do not want to abide by section 401’s time limit. Indeed,

States have employed various tactics to evade compliance

with the one-year limitation.

Some States have simply ignored the time limit

altogether. In November 2015, the Millennium Pipeline

Company submitted a certification request to the New

York State Department of Environmental Conservation

(NYSDEC) for the Millennium Valley Lateral project, a 7.8mile pipeline connecting a natural gas mainline to a new

natural gas-fueled combined cycle electric generation

facility in New York. In August 2017, nearly two years

after the initial request for certification, NYSDEC denied

the request. FERC concluded that the State’s 21-month

delay constituted waiver, and the U.S. Court of Appeals for

the Second Circuit affirmed. N.Y. State Dep’t of Envtl.

Conservation v. FERC, 884 F.3d 450 (2d Cir. 2018).

NYSDEC also has tried to evade the one-year limit by

requiring an applicant to stipulate to a different receipt

date for its application. N.Y. State Dep’t of Envtl.

Conservation v. FERC, 991 F.3d 439 (2d Cir. 2021). On

March 2, 2016, an INGAA member submitted a request for

water quality certification to NYSDEC for the $500 million

Northern Access project. Id. at 443. The project included

approximately 99 miles of new pipeline facilities, the

majority of which would be co-located within existing

rights-of-way. Id. at 442–43. In February 2017, FERC

14

conditionally approved the project provided that the project

proponent obtain state certification. Id. at 443. NYSDEC

did not deny water quality certification until April 7, 2017,

more than one year after the request was submitted. Id. at

444. NYSDEC argued that it completed its work within one

year because the project proponent entered into an

agreement with NYSDEC “revising the date . . . on which

the Application was deemed received by [NYSDEC] to

April 8, 2016.” Id. at 443. FERC, however, concluded that

NYSDEC waived its certification authority. Id. at 444.

Other States have asked applicants to withdraw their

applications and resubmit them to restart the clock. For

example, on August 22, 2013, a member of API and INGAA

submitted a certification request for the Constitution

Pipeline, a $683 million, 124-mile natural gas pipeline

designed to connect natural gas production in

Pennsylvania to demand in the northeast. In April 2015,

NYSDEC requested that the project proponent withdraw

and resubmit its request in order to restart the waiver

period. Nearly three years after the initial request,

NYSDEC denied certification. Following litigation over

NYSDEC’s denial, FERC concluded that NYSDEC waived

its certification authority. But in February 2020, after

years of delay, the project’s sponsor halted investment and

cancelled the project.

FERC’s position here, and the decision below affirming

it, resurrect the procedure—and the accompanying

potential for abuse—that FERC itself foreclosed in the

Constitution Pipeline proceeding. Instead of asking the

applicant to withdraw its request and resubmit a new

request, States can achieve the same result by simply

“denying without prejudice” on the understanding that the

applicant will refile. And the State can “deny without

15

prejudice” every 364 days in perpetuity, in violation of the

plain text of the CWA and FERC’s exclusive authority

under the NGA.

The D.C. Circuit’s decision below also cannot be squared

with its 2019 decision in Hoopa Valley. That case involved

a hydropower project consisting of a series of dams along

the Klamath River in California and Oregon. Hoopa Valley,

913 F.3d at 1101. In 2004, the licensee, PacifiCorp filed for

relicensing with FERC. Ibid. In 2008, PacifiCorp entered

into an agreement with the States of Oregon and California

providing that PacifiCorp would “withdraw and re-file its

applications for Section 401 certifications as necessary to

avoid the certifications being deemed waived under the

CWA.” Id. at 1102. The court held that Oregon and

California waived their certification authority because the

withdrawal-and-resubmission

scheme

“serve[d]

to

circumvent [FERC’s] congressionally granted authority

over the licensing, conditioning, and developing of a

hydropower project.” Id. at 1104–05. The court further

warned that “if allowed, [such] scheme could be used to

indefinitely delay federal licensing proceedings and

undermine FERC’s jurisdiction to regulate such matters.”

Ibid.

Hoopa Valley is now a functional nullity. A State once

again can “avoid [its] certifications being deemed waived

under the CWA” through a “scheme” that achieves

“indefinite[] delay.” See id. at 1102–05. The scheme has a

different name, but its potential for abuse remains the

same.

The decision below is problematic for another reason—

States not only have attempted to extend section 401’s rigid

time limit, but also to use section 401 to veto important

16

projects for reasons unrelated to water quality. For

example, in 2017, the Washington Department of Ecology

denied Millennium Bulk Terminals-Longview request for

section-401 water quality certification, citing no water

quality concerns whatsoever, relying instead on adverse

impacts related to air quality, vehicle transportation,

noise, social and community, rail transportation and

safety, vessel transportation, and cultural and tribal

resources concerns.3 Were there any doubt that the State’s

denial was not based on water quality impacts, the state

environmental impact statement removed it by concluding

that “[t]here would be no unavoidable and significant

adverse environmental impacts on water quality.”4

New York took a similar approach with the Millennium

Valley Lateral Project. In addition to denying certification

more than 21 months after the company’s request,

NYSDEC also denied certification on grounds that

exceeded the State’s authority under section 401. NYSDEC

explained that it denied certification because FERC’s

environmental review lacked adequate analysis of

potential downstream greenhouse gas emissions.5

Letter from Maia D. Bellon, Director, Washington

Department of Ecology, to Kristin Gaines, Millennium Bulk

Terminals-Longview,

LLC

(Sept.

26,

2017),

at

4–13,

https://ecology.wa.gov/Asset-Collections/Doc-Assets/RegulationsPermits/Environmental-review/SEPA-Millennium-BulkTerminals/Permit-Denial-Millennium-Bulk-Terminals.

4 E. Placido & S. Toteff, Wash. State Dep’t of Ecology and

Cowlitz Cty., Millennium Bulk Terminal-Longview SEPA Vol. 1: Final

Environmental Impact Statement (Apr. 28, 2017), Section 4.5.8,

https://apps.ecology.wa.gov/publications/documents/1706013.pdf.

5 Letter from Thomas Berkman, Deputy Commissioner and

General Counsel, NYSDEC, to Georgia Carter, Vice President and

General Counsel, Millennium Pipeline Company LLC and John

Zimmer, Pipeline/LNG Market Director, TRC Environmental Corp.

3

17

In an even more egregious case, a State vetoed an

interstate pipeline project because it disagreed with

FERC’s conclusion that the public convenience and

necessity required approval of the project. In 2020, North

Carolina denied certification for Mountain Valley Pipeline

Southgate because it determined the purpose of the project

was “unachievable” due to the “uncertainty” of completion

of a different pipeline project.6 The achievability of a

project is well beyond the State’s purview under section

401, and in fact, clearly intrudes upon authority the NGA

expressly grants to FERC, to determine whether “the

applicant is able and willing properly to do the acts and to

perform the service proposed.” 15 U.S.C. § 717f(e).

Although courts have foreclosed States from expressly

denying certification on grounds other than water quality

concerns, see Mountain Valley Pipeline, LLC v. N.C. Dep’t

of Envtl. Quality, 990 F.3d 818, 830–31 (4th Cir. 2021), the

decision below gives States the ability to do so covertly. A

State wishing to deny certification on grounds other than

water quality need only deny without prejudice every 364

days, and thus avoid ever providing the real reasons for its

denial.

In sum, the question presented about whether States

can circumvent section 401’s one-year limitation as the

State did in the present case has nationwide importance

(Aug.

30,

2017),

at

2,

http://climatecasechart.com/wpcontent/uploads/sites/16/case-documents/2017/20170830_docket-33399-0007100001_letter.pdf.

6 Letter from S. Daniel Smith, Director, Division of Water

Resources, North Carolina Department of Environmental Quality, to

Kathy Salvador, Mountain Valley Pipeline LLC (Aug. 11, 2020), at 2,

https://deq.nc.gov/pipelines/2018-1638v3-mvp-southgate-rockinghamalamance-denial/download.

18

for a number of industries, including hydropower and

natural gas. This Court’s review is necessary to prevent

States from evading the clear statutory limits Congress

placed on their authority.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

GEORGE P. SIBLEY, III

Counsel of Record

HUNTON ANDREWS KURTH LLP

951 East Byrd Street, East Tower

Richmond, VA 23219

gsibley@HuntonAK.com

(804) 788-8200

ERICA N. PETERSON

HUNTON ANDREWS KURTH LLP

2200 Pennsylvania Avenue, NW,

Suite 900

Washington, D.C. 20037

(202) 955-1500

Counsel for Amici Curiae

February 6, 2023