Tuesday, July 21, 2015

D.C. Circuit Holds that Environmental Group Falls Outside of Zone of Interests of NEPA and the Clean Water Act

On July 21, the D.C. Circuit (Rogers (dissenting in part), Brown, Ginsburg) issued a decision in Gunpowder Riverkeeper v. FERC.  Gunpowder Riverkeeper, an environmental organization, filed a petition for review challenging FERC’s decision to issue a certificate of public convenience and necessity conditionally authorizing Columbia Gas Transmission to extend a natural gas pipeline in Maryland.  Gunpowder Riverkeeper alleged that FERC issued the certificate in violation of NEPA and the Clean Water Act.  The D.C. Circuit denied the petition on the ground that Gunpowder Riverkeeper’s asserted interests in the certificate fell outside of the zone of interests of NEPA or the Clean Water Act.  To establish an injury that satisfied Article III’s standing requirements, Gunpowder Riverkeeper relied on the taking of land by Columbia under eminent domain enabled by the certificate.  The court of appeals held that such an injury met the Article III standard, but because Gunpowder Riverkeeper did not claim an environmental injury from the threat of eminent domain, its interests lay outside of the zone of interests of NEPA or the Clean Water Act.  Judge Rogers dissented in part but concurred in the judgment.  She would have held that Gunpowder Riverkeeper stated an environmental interest within the scope of NEPA and the Clean Water Act, but would have rejected the petitioner’s claims on the merits.

At first glance, the majority’s conclusion that Gunpowder Riverkeeper, an environmental group, did not state environmental interests seems strange.  In reading Judge Rogers’s dissent, however, she explains that Gunpowder Riverkeeper argued only that its interests fell within the zone of interest of the Natural Gas Act, which created the cause of action.  This created a problem for Gunpowder Riverkeeper, because D.C. Circuit case law provides that petitioners must assert interests within the zone of interests of the statutes allegedly violated—here, NEPA and the Clean Water Act.  Judge Rogers thought it was sufficiently clear from the record that Gunpowder Riverkeeper had asserted interests congruent with NEPA and the Clean Water Act, but apparently Gunpowder Riverkeeper never made such an argument in its briefs.

—Todd Aagaard


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