DC Court of Appeals: Association Doesn’t Have Standing to Challenge FERC’s Issuance of a Certificate of Public Convenience and Necessity

In Gunpowder Riverkeeper v. FERC (where Columbia Gas Transmission, LLC was an Intervenor), the U.S. Court of Appeals for the District of Columbia Circuit denied Gunpowder Riverkeeper’s petition seeking a review of FERC’s issuance of a conditional certificate for public convenience and necessity granted by FERC to Columbia Gas Transmission to extend a natural gas pipeline in Maryland pursuant to FERC’s s authority under the Natural Gas Act (NGA).  Gunpowder Riverkeeper is described by the Court of Appeals as an association of individuals who “work, live, and recreate along the Gunpowder River and its tributaries” who are concerned with the power of eminent domain conveyed to Columbia Gas under Section 7 of the NGA to secure rights-of-way. 

FERC called into question Gunpowder River’s standing to seek this redress, and a majority of the Court of Appeals panel agreed that Gunpowder River did not have a valid cause of action because its desire to protect its members property in the face of alleged noncompliance by FERC with the National Environmental Policy Act (NEPA) and Clean Water Act (CWA) does not fall within the “zone of interests” protected by the NGA, NEPA, or CWA.  It found that reliance upon NEPA is untenable because Gunpowder River does not argue that its members would suffer any environmental harms, and a resort to the CWA was also unavailing because Gunpowder River’s claims are not concerned with protecting navigable waters and other streams from pollution.  It further found that a claim based on eminent domain will not support a CWA claim.

In a partial dissent, Circuit Judge Rogers would have held that the allegations were sufficient to trigger claims under NEPA and the CWA, but that their case was otherwise not meritorious.