ML120300458
| ML120300458 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee  |
| Issue date: | 01/27/2012 |
| From: | Gray C, White A Entergy Nuclear Operations, Entergy Nuclear Vermont Yankee, Riverkeeper, Scenic Hudson, State of NY, State of VT, Public Service Board, Boyden Gray & Associates |
| To: | NRC/OGC |
| Croston S | |
| References | |
| 11-1168, 11-1177, 1355271 | |
| Download: ML120300458 (30) | |
Text
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 1 of 30 ORAL ARGUMENT SCHEDULED FOR MAY 9, 2012 Nos. 11-1168 & 11-1177, consolidated IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT VERMONT DEPARTMENT OF PUBLIC SERVICE, et al.,
Petitioners, v.
U.S. NUCLEAR REGULATORY COMMISSION, et al.,
Respondents.
On Petition for Review of a Final Order of The United States Nuclear Regulatory Commission BRIEF FOR AMICUS CURIAE ENERGY FUTURE COALITION IN SUPPORT OF RESPONDENTS C. Boyden Gray Adam J. White BOYDEN GRAY & ASSOCIATES 1627 I St. N.W., Suite 950 Washington, D.C. 20006 (703) 371-4743 January 27, 2012 adam@boydengrayassociates.com
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 2 of 30 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to D.C. Circuit Rule 28(a)(1), the undersigned counsel certifies as follows:
A. Parties and Amici The Vermont Department of Public Service is the petitioner in Case No. 11-1168, and the New England Coalition is the petitioner in Case No. 11-1177. The Nuclear Regulatory Commission and the United States of America are the respondents. Entergy Nuclear Operations, Inc. and Entergy Nuclear Vermont Yankee, LLC are Intervenors in both cases, which have been consolidated. Riverkeeper, Inc., Scenic Hudson, Inc. and New York State are amici on the side of petitioners, while the Energy Future Coalition is an amicus on the side of respondents.
B. Rulings Under Review Petitioners seek review of the NRCs final order granting Renewed Operating Facility License No. DPR-28 for the Vermont Yankee Nuclear Power Station on March 21, 2011. See 76 Fed. Reg. 17,162 (Mar. 28, 2011).
C. Related Cases Counsel for amicus is aware of no related cases.
i
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 3 of 30
/s/ Adam J. White Adam J. White BOYDEN GRAY & ASSOCIATES 1627 I St. N.W., Suite 950 Washington, D.C. 20006 (703) 371-4743 adam@boydengrayassociates.com January 27, 2012 Counsel for Amicus Curiae ii
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 4 of 30 CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Circuit Rule 26.1, I certify that amicus Energy Future Coalition (EFC) is an unincorporated initiative of the United Nations Foundation (UN Foundation), which is in turn a non-profit charitable and educational foundation incorporated in a manner consistent with Section 501(c)(3) of the Internal Revenue Code. No parent company or publicly-held company has a 10% or greater ownership interest in EFC or the UN Foundation. The UN Foundation is separate from and independent of the United Nations Organization.
EFCs general nature and purpose is to identify pragmatic solutions to energy and environmental policy challenges that can achieve broad-based bipartisan support in the public interest. The UN Foundations purpose is to develop charitable programs in support of solutions to global problems consistent with the work of the United Nations, including the energy and environmental problems that require policy responses from the United States as well as other nations. Neither EFC nor the UN Foundation takes a position on the specific merits of the energy project or application at issue in this case; rather, EFC is participating as amicus out of concern that a decision iii
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 5 of 30 in this proceeding not establish a precedent negatively affecting the efficient and effective federal regulation of natural gas infrastructure projects.
Respectfully submitted,
/s/ Adam J. White Adam J. White BOYDEN GRAY & ASSOCIATES 1627 I St. N.W., Suite 950 Washington, D.C. 20006 (703) 371-4743 adam@boydengrayassociates.com January 27, 2012 Counsel for Amicus Curiae iv
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 6 of 30 TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ....i
CORPORATE DISCLOSURE STATEMENT ............................................iii
TABLE OF CONTENTS ............................................................................. v
TABLE OF AUTHORITIES....................................................................... vi
GLOSSARY ............................................................................................... ix
STATUTES AND REGULATIONS............................................................ 1
STATEMENT OF IDENTITY, INTEREST IN CASE, AND SOURCE OF AUTHORITY TO FILE ............................................................... 1
STATEMENT OF AUTHORSHIP AND FINANCIAL CONTRIBUTION .............................................................................. 2
INTRODUCTION....................................................................................... 3
ARGUMENT .............................................................................................. 6
I. Federal Agencies Employ Conditional Permits To Efficiently and Efficaciously Comply With Section 401................................ 6
II. The FERCs Conditional-Certification Framework Avoids The Often Impossible Task Of Delaying Federal Review Of Projects Until The States Section 401 Review Has Completed... 11
III. Petitioners Overbroad Characterization Of Section 401, If Accepted By The Court, Could Substantially Burden Natural Gas Infrastructure Development Just When It Is Needed Most .. 16
CONCLUSION ......................................................................................... 18
CERTIFICATE OF COMPLIANCE ......................................................... 19
CERTIFICATE OF SERVICE ................................................................... 20
v
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 7 of 30 TABLE OF AUTHORITIES Page(s)
CASES Arkansas v. Oklahoma, 503 U.S. 91 (1992) ....................................................... 6 City of Grapevine, Tex. v. Dept of Transportation, 17 F.3d 1502 (D.C. Cir. 1994).................................................................. 15 Del. Dept of Nat. Res. and Envtl. Control v. FERC, 558 F.3d 575 (D.C. Cir. 2009) .................................................................. 5 Islander E. Pipeline Co., LLC v. McCarthy, 525 F.3d 141 (2d Cir. 2008) .............. 8 N.M. Atty Gen. v. FERC, 466 F.3d 120 (D.C. Cir. 2006) ............................... 15 New York v. United States, 505 U.S. 144 (1992) ................................................ 6 State of Or. v. FERC, 636 F.3d 1203 (9th Cir. 2011) ......................................... 5 Weavers Cove Energy, LLC v. R.I. Dept of Envtl. Mgmt.,
524 F.3d 1330 (D.C. Cir. 2008)................................................................. 8 U.S. CODE 15 U.S.C. §§ 717 et seq................................................................................... 4 15 U.S.C. § 717b......................................................................................... 11 15 U.S.C. § 717f ......................................................................................... 11 16 U.S.C. § 470f ......................................................................................... 15 16 U.S.C. §§ 791a et seq. .............................................................................. 11 16 U.S.C. §§ 824p(b) ................................................................................... 11
- Starred entries are authorities on which this brief principally relies.
vi
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 8 of 30 U.S. CODE (CONTD) 16 U.S.C. §§ 1451 et seq. ................................................................................ 5
- 33 U.S.C. § 1341 (Section 401 of the Clean Water Act) .......................... 3, 7
- 33 U.S.C. § 1341(a)(1)...................................................................... 5, 7, 9, 15 33 U.S.C. § 1341(d) ...................................................................................... 7 33 U.S.C. § 1344......................................................................................... 10 42 U.S.C. §§ 7401 et seq. ................................................................................ 5 ADMINISTRATIVE DECISIONS
- Broadwater Energy LLC, 124 FERC ¶ 61,225 (2008)............................ 13, 14, 17 Crown Landing LLC, 117 FERC ¶ 61,209 (2006) ......................................14, 15 E. Tenn. Nat. Gas Co., 101 FERC ¶ 61,188 (2002) ......................................... 12
- E. Tenn. Nat. Gas Co., 102 FERC ¶ 61,225 (2003) ......................................... 12 E. Tenn. Nat. Gas Co., 105 FERC ¶ 61,139 (2003) ......................................... 13 Finavera Renewables Ocean Energy, Ltd., 122 FERC ¶ 61,248 (2008) ................ 11 Fla. Gas. Trans. Sys., 90 FERC ¶ 61,212 (2000) ............................................. 14 Ga. Strait Crossing Pipeline LP, 108 FERC ¶ 61,053 (2004) ............................. 14 Gulfstream Nat. Gas Sys., L.L.C., 94 FERC ¶ 61,185 (2001) ............................ 14 Islander East Pipeline Co., 102 FERC ¶ 61,054 (2003) ..................................... 14
- Starred entries are authorities on which this brief principally relies.
vii
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 9 of 30 REGULATORY MATERIALS 33 C.F.R. § 148.105(i)(1)............................................................................. 10 62 Fed. Reg. 31,492 (June 9, 1997) .............................................................. 10 MISCELLANEOUS EIA, Annual Energy Outlook 2012 Early Release Overview (2012)....................... 16 EPA, Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and Tribes (2010) ...................................... 10 Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space (Jan. 4, 2012) (forthcoming, 125 Harvard Law Review (2012)) ................................................................................. 9 ICF International, North American Midstream Infrastructure Through 2035A Secure Energy Future (2011) ........................................................ 17 Sen. Timothy E. Wirth, Energy Future Coalition, Leadership on Natural Gas and Cleaner Fuels (May 8, 2011) ......................................................... 17 viii
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 10 of 30 GLOSSARY Section 401..................................... Section 401 of the Clean Water Act, 33 U.S.C. § 1341 ix
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 11 of 30 STATUTES AND REGULATIONS All applicable statutes, etc., are contained in the Brief for Petitioners and the Brief for Respondents.
STATEMENT OF IDENTITY, INTEREST IN CASE, AND SOURCE OF AUTHORITY TO FILE Amicus Energy Future Coalition (EFC) is an unincorporated initiative of the United Nations Foundation (UN Foundation). Its general nature and purpose is to identify pragmatic solutions to energy and environmental policy challenges that can achieve broad-based bipartisan support in the public interest. The UN Foundation is separate from and independent of the United Nations Organization; its purpose is to develop charitable programs in support of solutions to global problems consistent with the work of the United Nations, including the energy and environmental problems that require policy responses from the United States as well as other nations.
Neither EFC nor the UN Foundation takes a position on the specific merits of the energy project or application at issue in this case; rather, EFC is participating as amicus out of concern that a decision in this proceeding not establish a precedent negatively affecting the efficient and effective federal regulation of natural gas infrastructure projects.
1
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 12 of 30 Pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure and D.C. Circuit Rule 29(b), all parties have consented to the filing of this brief.
STATEMENT OF AUTHORSHIP AND FINANCIAL CONTRIBUTION No partys counsel authored this brief in whole or in part; no party or partys counsel contributed money that was intended to fund preparing or submitting this brief; and no person (other than amicuss counsel) contributed money that was intended to fund preparing or submitting this brief.
2
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 13 of 30 INTRODUCTION Petitioners argue that the Nuclear Regulatory Commission (NRC) violated Section 401 of the Clean Water Act (33 U.S.C. § 1341) by issuing a nuclear relicensing order to a project that had not yet received a new Section 401 state water quality certification. Amicus Energy Future Coalition (EFC) takes no position on that narrow issue,1 but instead files this brief out of an abundance of caution, to respectfully advise the Court against adopting Petitioners broad characterization of the requirements of Section 401 with respect to federal agencies review of domestic energy infrastructure proposals.
Petitioners assert that the NRC and other agencies must assure that a § 401 Certification is in hand before issuing licenses. Petitioners Br. at
- 23. And in the absence of a § 401 Certification, Petitioners argue, Section 401 obligated NRC to refrain from granting the new license. Id. at 25. That characterization of Section 401 is dangerously overbroad, and if taken literally could contradict federal agencies well-established practice of issuing conditional or provisional licenses pending completion of a states Section 401 proceedings.
1 Indeed, EFC takes no position on any of the issues before the Court other than the points specifically urged in this brief, or on the merits of the Vermont Yankee nuclear facility generally.
3
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 14 of 30 Federal licensing agencies, such as the NRC here, often must comply with both their own substantive licensing statutes (e.g., the Atomic Energy Act) and Section 401 of the Clean Water Act when reviewing an application for a federal license for particular project. Section 401, in turn, empowers states to review the license applicants project separately, to ensure compliance with the states federally approved water quality standards.
Absent coordination between the federal and state proceedings, there is great risk of uncertainty and delay; state Section 401 proceedings are often lengthy and costly, an unwelcome prospect for a project applicant that does not yet know whether it will at least receive the necessary federal approval.
To minimize the burdens of this uncertainty, and coordinate the federal and state proceedings while complying with both the substantive federal licensing statute and Section 401, several federal agencies have developed the practice of issuing conditional or provisional licenses.
These preliminary approvals conclude the federal agencys review under its own statute (e.g., the Natural Gas Act, 15 U.S.C. §§ 717 et seq.) yet do not go into final effect until the applicant demonstrates full compliance with Section 401. In issuing such a preliminary license or permit, the federal agency does not violate Section 401 even though it does not yet have the states Section 401 4
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 15 of 30 certification in hand, because the federal agency has not yet actually granted a license or permit within the meaning of Section 401; the final license or permit grant does not occur until the applicant satisfies the requirements of Section 401. 33 U.S.C. § 1341(a)(1).
The distinction between unconditional and conditional orders is not of merely theoretical concern. Litigants in other cases have argued that Section 401 and similar statutes2 prohibit the use of unconditional orders by the Federal Energy Regulatory Commission (FERC). See Del. Dept of Nat.
Res. and Envtl. Control v. FERC, 558 F.3d 575, 576-77 (D.C. Cir. 2009); State of Or. v. FERC, 636 F.3d 1203, 1205-06 (9th Cir. 2011). The stakes in those cases were high: as FERC has explained repeatedly, to interpret Section 401 as prohibiting conditional orders would impose sometimes impossible burdens on interstate pipeline projects and harm the public interest. See infra pp. 11-14.
Fortunately, those litigants arguments were not endorsed by the courts, which dismissed their petitions on standing or mootness grounds. Del. Dept of Nat.
Res., 558 F.3d at 577-79 (standing); State of Or., 636 F.3d at 1206 (mootness).
In this case, of course, the NRCs relicensing order is finalit is not conditioned upon future compliance with Section 401. In that respect, it is 2
Namely, the Coastal Zone Management Act, 16 U.S.C. §§ 1451 et seq., and the Clean Air Act, 42 U.S.C. §§ 7401 et seq.
5
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 16 of 30 not a conditional or provisional order. Nevertheless, Petitioners aforementioned characterization of Section 401s requirements, if taken literally by this Court, could implicate other agencies practice of issuing conditional orders: when an agency issues a provisional licensing order conditioned upon future compliance with Section 401, by definition it does not have the states Section 401 certification in hand. Petitioners Br. at 23.
Accordingly, if this Court reaches the merits of Petitioners Section 401 arguments in this case, amicus EFC respectfully requests that the Court take care to limit its holding to final, unconditional orders exemplified by the NRCs relicensing order. To phrase its holding in terms that go beyond the matters directly at issue in this case, and inadvertently cast doubt on the FERCs ability to continue to use conditional orders, could hamper natural gas infrastructure development at a critical moment.
ARGUMENT I. Federal Agencies Employ Conditional Permits To Efficiently and Efficaciously Comply With Section 401 As the Supreme Court noted years ago, the Clean Water Act is a program of cooperative federalism, New York v. United States, 505 U.S. 144, 167 (1992), anticipating a partnership between the States and the Federal Government, animated by a shared objective, Arkansas v. Oklahoma, 503 U.S.
91, 101 (1992). And that partnership is exemplified by Section 401 of the 6
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 17 of 30 Clean Water Act, which strikes a balance between federal and state responsibility in administering federal licensing statutes and promoting state protection of the environment. See 33 U.S.C. § 1341.
Section 401 operates as follows: a federal agency considering an application for a federal approval or licensee.g., the FERC, under the Natural Gas Actmust respect the states statutory right to review activities that may result in any discharge into the navigable waters. Id. § 1341(a)(1). If the state grants the applicant a water quality certification, then the federal agency may issue the project its federal license. Id. If the state denies the applicant a water quality certification, then the federal agency cannot issue a license. Id.3 By creating a state review parallel to the federal license proceedings, Section 401 created a two-track process for federal license applicants whose projects trigger Section 401. The applicants still must satisfy the overarching federal licensing standards, under the Atomic Energy Act, 3
And there are at least two other possibilities: If the state grants the water quality certification but with conditions, then the federal agency must incorporate those conditions into its own license. Id. § 1341(d). If the state fails or refuses to act on the applicants request for a water quality certification within a reasonable period of time (which shall not exceed one year), then the requirements of Section 401 are waived. Id. § 1341(a)(1).
7
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 18 of 30 Natural Gas Act, or other statute. But they also must satisfy the states own federally approved Clean Water Act standards under Section 401.
And that state process can be extremely lengthy and costly, encompassing not merely the state regulators initial review, but then administrative or judicial appeal (sometimes even in federal court). See, e.g.,
Weavers Cove Energy, LLC v. R.I. Dept of Envtl. Mgmt., 524 F.3d 1330, 1333 (D.C. Cir. 2008) (nothing that administrative appeals were pending for one states issuance of a certification, and for another states denial). And the result on appeal may well be to return the entire matter to the state agency, to start the entire process over again. See Islander E. Pipeline Co., LLC v. McCarthy, 525 F.3d 141, 148-50 (2d Cir. 2008) (describing projects initial receipt of a state certification, which was appealed to the Second Circuit and remanded to the state, which then denied the certification).
Indeed, the project and the state may find themselves litigating the very question of when the statutory clock governing the states certification proceedings has begun to tick. See Weavers Cove Energy, 524 F.3d at 1331-32.
In short, this two-track process, giving overlapping jurisdiction to federal and state regulators, presents stark agency-coordination problems. To borrow the terminology used by two administrative law scholars in a forthcoming law review article on overlapping agency mandates, Section 401 8
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 19 of 30 requires the federal and state agencies to share regulatory space, which creates a risk of inconsistency, waste, confusion, and systemic failure to deliver on the putative statutory goals. Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, at p. 50 (Jan. 4, 2012) (forthcoming, 125 Harvard Law Review (2012)).4 To avoid precisely those risks in the Section 401 context, several federal agencies have developed the practice of issuing conditional or provisional approvals: once the federal agency determines that the license applicant satisfies the requirements of the substantive licensing statute, such as the Natural Gas Act, it issues the applicant a conditional or provisional approval that does not go into effect until the applicant satisfies its parallel obligations under Section 401 of the Clean Water Act.
The issuance of a conditional or provisional federal approval before the state completes its own water quality certification review does not violate Section 401, because the federal agencys provisional approval does not actually grant the applicant a license or permit within the meaning of Section 401. 33 U.S.C. § 1341(a)(1). Instead, as the EPA explains in its current guidance, a federal agencys provisional authorization never becomes valid 4
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1778363 9
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 20 of 30 if the applicant fails to secure a states approval or waiver under Section 401.
EPA, Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and Tribes 31 (2010) (interim).5 In its guidance, the EPA offers one example for this type of conditional or provisional approval: the U.S. Army Corps of Engineerss Savannah District issues provisional dredge-and-fill permits under Section 404 of the Clean Water Act (33 U.S.C. § 1344) that go into effect only after the applicant receives its state water quality certification under Section 401. See id.
at 12. And there are still other examples. The larger U.S. Army Corps of Engineers endorses the use of provisional permits to complete the review of Section 404 dredge-and-fill applications while the states Section 401 certification review remains pending. 62 Fed. Reg. 31,492, 31,495 (June 9, 1997).6 So does the Coast Guard in licensing deepwater ports under its own statute. See 33 C.F.R. § 148.105(i)(1).
5 http://water.epa.gov/lawsregs/guidance/cwa/upload/CWA_401_
Handbook_2010_Interim.pdf 6
The Army Corps regulatory guidance letter, endorsing the use of provisional permits for federal dredge-and-fill permits, had a nominal expiration date of December 31, 1998, but it remains in effect because regulatory guidance letters generally remain[] valid after the expiration date until superseded by specific provisions of subsequently issued regulations or
[regulatory guidance letters]. Id. at 31,492.
10
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 21 of 30 But the best example, and the focus of the remainder of this brief, is the FERC, which has established a deep body of precedent justifying its use of conditional certifications as both lawful and prudent.
II. The FERCs Conditional-Certification Framework Avoids The Often Impossible Task Of Delaying Federal Review Of Projects Until The States Section 401 Review Has Completed The FERC is responsible for regulating much of the nations most important energy infrastructure development. First and foremost this involves the nations interstate natural gas pipelines, for which the FERC issues certificates of public convenience and necessity under Section 7 of the Natural Gas Act, 15 U.S.C. § 717f. But the FERCs responsibilities also include the approval or disapproval of liquefied natural gas import or export facilities under Section 3 of the Natural Gas Act, 15 U.S.C. § 717b; the licensing of traditional hydropower projects and new offshore wave power projects under the Federal Power Act, 16 U.S.C. §§ 791a et seq.; and the issuance of construction permits for interstate transmission lines in national interest electric corridors, 16 U.S.C. § 824p(b).
Each of those types of FERC-regulated energy infrastructure projects could trigger state review authority under Section 401 of the Clean Water Act. See, e.g., Finavera Renewables Ocean Energy, Ltd., 122 FERC
¶ 61,248, at P 4 (2008) (offshore wave pilot project). But the most common 11
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 22 of 30 context in which the FERC must comply with Section 401, and thus the context in which it most often issues conditional approvals, is its approval of new interstate natural gas pipelines and liquefied natural gas facilities.
For example, when the FERC approved the East Tennessee Natural Gas Companys proposal to expand and extend its mainline facilities in Tennessee, Virginia, and North Carolina in 2002-2003, it expressly conditioned its approval on East Tennessees eventual receipt of a Section 401 water quality certification from Virginia. See E. Tenn. Nat. Gas Co., 102 FERC
¶ 61,225, at PP 55, 64 (2003) (order on rehg, aff g 101 FERC ¶ 61,188 (2002)).
When the FERC reviewed the pipelines Natural Gas Act application, the pipeline had applied to Virginia for the Section 401 certification, but the state proceedings were still being disputed. See id. at PP 55-56.
Rather than hold its own proceedings in abeyance indefinitely, the FERC completed its proceedings by conditionally approving the pipeline, subject to (among other things) its ultimate compliance with Section 401. See id. at P 63. This approach is founded on practical grounds, the FERC explained; for in spite of the best efforts of those involved, it is often impossible for an applicant to obtain all approvals necessary to construct and operate a project in advance of the Commissions issuance of a certificate. Id.
And in fact the pipeline would ultimately satisfy Section 401, several months 12
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 23 of 30 after the FERC issued its original conditional certificate. See E. Tenn. Nat. Gas Co., 105 FERC ¶ 61,139, at P 28 (2003).
The FERC was even more emphatic in justifying its use of conditional orders in another case, involving both a liquefied natural gas import facility and the related pipeline. Broadwater Energy LLC, 124 FERC
¶ 61,225 (2008). Against arguments that its conditional approval would violate Section 401s prohibition against grant[ing] a license or permit absent the states Section 401 certification, the FERC explained that conditional approvals are a practical response to the reality that, in spite of the best efforts of those involved, it may be impossible for an applicant to obtain all approvals necessary to construct and operate a project in advance of the Commissions issuance of its certificate without unduly delaying the project. Id. at P 59. And in that respect, the FERCs practical response was rooted in its judgment of the costs and burdens that would be imposed on both the applicant and the public at large if the FERC did not issue conditional approvals:
To rule otherwise, would either place the Commissions administrative process indefinitely on hold until states with delegated federal authority choose to act or require the Commission to deny applications where all federal permits
[i.e., states Section 401 certification and other delegated federal powers] have not issued prior to the Commission[s]
completion of its review under the [Natural Gas Act]. Either of these approaches would likely delay the in-service date of 13
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 24 of 30 major infrastructure projects to the detriment of consumers and the public in general.
Id. at P 59 n.60 (emphasis added).
These are not isolated examples of the FERCs use of conditional orders; rather, the FERC routinely issues certificates for natural gas pipeline projects subject to the federal permitting requirements of Section 401 of the Clean Water Act and other similar federal statutes. Islander East Pipeline Co.,
102 FERC ¶ 61,054, at P 115 (2003). This practice is so commonplace that virtually every certificate approving an interstate natural gas pipeline is conditioned upon meeting the federal permitting requirements of Section 401 and other statutes, Ga. Strait Crossing Pipeline LP, 108 FERC ¶ 61,053, at P 15 (2004), and the FERC has defended this practice against myriad rehearing requests.7 In each case, the conditional order is an incipient authorization without current force and effect, since it does not yet allow [the project] to begin the activity it proposes. Crown Landing LLC, 117 FERC ¶ 61,209, at P 21 (2006). In that respect, it reflects this Courts own conclusion that the 7
In addition to the other FERC cases cited in this discussion, see, e.g.,
Gulfstream Nat. Gas Sys., L.L.C., 94 FERC ¶ 61,185, at 61,641 (2001); Fla. Gas.
Trans. Sys., 90 FERC ¶ 61,212, at 61,697 (2000); cf. Crown Landing LLC, 117 FERC ¶ 61,209, at PP 13-29 (2006) (conditioning approval on compliance with the Coastal Zone Management Act and Clean Air Act).
14
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 25 of 30 FERCs issuance of a conditional order, subject to a further compliance filing, is without binding effect for purposes of the standing doctrines injury-in-fact requirement. N.M. Atty Gen. v. FERC, 466 F.3d 120, 120 (D.C.
Cir. 2006), quoted in Crown Landing, 117 FERC at P 21 n.27. Accordingly, such a non-binding order grant[s] no actual license or permit to the applicant, 33 U.S.C. § 1341(a)(1), and therefore does not run afoul of Section 401s requirements.8 In sum, the FERCs experience in complying with Section 401 of the Clean Water Act demonstrates that Petitioners overstate matters by asserting that federal agencies must have the states Section 401 certification in hand before issuing a licensing order. Petitioners Br. at 23. So long as the federal agencys order is conditional or provisional, lacking full effect until the applicant complies with Section 401, the agency may lawfully issue the order without a water quality certification in hand.
8 The FERC also regularly justifies its conditional-approval policy by citing City of Grapevine, Tex. v. Dept of Transportation, 17 F.3d 1502 (D.C. Cir. 1994), a case involving the National Historic Preservation Acts prohibition against an agencys approval of federal funding for certain projects without first giving the Advisory Council on Historic Preservation the opportunity to comment, see 16 U.S.C. § 470f. In that case, the Court held that an agencys conditional approval was not an approval for purposes of that Act. 17 F.3d at 1508-09.
15
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 26 of 30 III. Petitioners Overbroad Characterization Of Section 401, If Accepted By The Court, Could Substantially Burden Natural Gas Infrastructure Development Just When It Is Needed Most As stressed above, the Courts resolution of this case need not implicate the FERCs and other agencies practice of issuing conditional or provisional orders, because the NRC order under review is neither conditional nor provisional with respect to Section 401. See supra pp. 5-6. But if the Court were to inadvertently adopt Petitioners overbroad description of Section 401requiring the agency to have the state certificate in hand before issuing a licensing orderwithout limiting its holding to truly final orders such as the NRC order at issue in this case, then the Courts opinion could needlessly and severely impede the nations development of its abundant clean energy resources.
According to the early release of the Energy Information Administrations 2012 Annual Energy Outlook, domestic natural gas production is poised to increase by nearly 30% in just twenty-five years, largely due to abundant shale gas reserves. See EIA, Annual Energy Outlook 2012 Early Release Overview 12 (2012).9 If those new gas reserves can be accessed safely and cleanlya task that will require strong commitments by both industry and the 9
http://www.eia.gov/forecasts/aeo/er/pdf/0383er(2012).pdf 16
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 27 of 30 government to public health, safety, and transparencythen they will prove to be an economic boon to the U.S. See Sen. Timothy E. Wirth, Energy Future Coalition, Leadership on Natural Gas and Cleaner Fuels (May 8, 2011).10 But to utilize those new reserves will also require the development of pipeline infrastructure to bring the gas to marketperhaps as much as 16,000 miles of new transmission mainlines by 2020, and 35,000 miles by 2035, according to one industry-sponsored study. See ICF International, North American Midstream Infrastructure Through 2035A Secure Energy Future 45 (2011).11 Given the nations opportunity to increase its reliance on natural gas and other clean energy suppliesincluding FERC-regulated hydropower and the electricity transmitted along new transmission lines sited by FERC, under the statutes noted abovethe public can ill afford to eliminate FERCs use of conditional orders, delay[ing] the in-service date of major infrastructure projects to the detriment of consumers and the public in general. Broadwater Energy LLC, 124 FERC at P 59 n.60.
10 http://www.energyfuturecoalition.org/editorsblog/Leadership-Natural-Gas-and-Cleaner-Fuels 11 http://www.ingaa.org/File.aspx?id=14900 17
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 28 of 30 CONCLUSION Again, amicus EFC does not mean to suggest that the NRC is defending its relicensing order in this case as a conditional order; the NRCs brief makes clear that it is unconditional. See NRC Br. at 13-17. Accordingly, resolution of this case does not require the Court to decide whether the use of conditional or provisional licenses or permits violates Section 401 of the Clean Water Act.
But if the Court does reach the merits of Petitioners substantive claims, amicus EFC respectfully requests that the Court take care to resolve the case narrowly, and thus leave undisturbed the FERCs and other agencys well-established practice. Section 401 does not require a federal permitting agency to have a state water quality certification in hand before conditionally or provisionally approving an energy infrastructure project.
Respectfully submitted,
/s/ Adam J. White Adam J. White BOYDEN GRAY & ASSOCIATES 1627 I St. N.W., Suite 950 Washington, D.C. 20006 (703) 371-4743 adam@boydengrayassociates.com January 27, 2012 Counsel for Amicus Curiae 18
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 29 of 30 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of FED. R.
APP. P. 29(d) because it contains 3,708 words, excluding the parts of the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii).
This brief complies with typeface requirements of FED. R. APP. P.
32(a)(5) and the type-style requirements of FED. R. APP. P. 32(a)(6), because it has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Calisto MT font.
/s/ Adam J. White January 27, 2012 Adam J. White 19
USCA Case #11-1168 Document #1355271 Filed: 01/27/2012 Page 30 of 30 CERTIFICATE OF SERVICE I hereby certify that all counsel of record who have consented to electronic service are being served today with a copy of this document via the Courts CM/ECF. All parties in this case are represented by counsel consenting to electronic service.
/s/ Adam J. White January 27, 2012 Adam J. White 20