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Moreau v. Federal Energy Regulatory Comm'n

ELR Citation: 23 ELR 20606
Nos. No. 91-1542, 982 F.2d 556/(D.C. Cir., 01/15/1993)

The court dismisses claims by owners of property adjacent to a natural gas pipeline that the Federal Energy Regulatory Commission (FERC) violated the National Environmental Policy Act (NEPA), the Natural Gas Act (NGA), and the Due Process Clause of the U.S. Constitution when it issued a certificate of public convenience and necessity for the pipeline's construction. An interstate pipeline operator and a Rhode Island gas company jointly constructed the pipeline to connect the interstate operator's Massachusetts mainline to the gas company's Rhode Island system. The court first holds that it lacks jurisdiction over the landowners' NEPA claim that FERC should have prepared an environmental impact statement for the project instead of an environmental assessment (EA), because the landowners first raised the claim eight months after FERC decided to prepare an EA. The court holds that it lacks jurisdiction to review the landowners' challenge to FERC's approval of an alternate route for the pipeline constructed by the Rhode Island company, because FERC has not yet ruled on the merits of the claim.

The court next holds that it has jurisdiction over the landowners' claims that FERC violated the NGA by failing to hold evidentiary hearings and violated the NGA and the Due Process Clause of the U.S. Constitution by failing to give them personal notice. Although the pipeline does not traverse their property, the landowners suffered aggrievement within the meaning of the NGA, because their allegations that the pipeline constitutes a permanent aesthetic eyesore and a continuing safety hazard have not been contradicted, and their claims are tenable. Further, the landowners seek to enforce procedural requirements that if disregarded could impair a separate, concrete interest of theirs.

The court holds that the landowners' claim that FERC erred in authorizing the beginning of construction by the interstate pipeline operator is unripe. FERC has not acted on the landowners' motion to vacate or suspend in which they raised the claim.

The court holds that the NGA does not require FERC to hold an in-person, trial-type hearing for the landowners' claims, and that FERC did not abuse its discretion in deciding not to hold a hearing. The court further holds that the NGA does not require FERC to give the landowners personal notice of the pendency of FERC's proceedings once the pipeline construction company proposed to route the pipeline across their property. The NGA provides that notice of applications for certificates of public convenience and necessity shall be served on interested parties in such manner as FERC shall require by regulation. FERC issued a regulation that notice shall be published in the Federal Register and mailed to affected states, which is what FERC did in this case. Finally, the court holds that the Due Process Clause of the U.S. Constitution does not require FERC to give the landowners personal notice, because the landowners' negotiations with the pipeline construction company gave them actual notice of FERC's proceedings at least eight months before FERC granted the certificate of public convenience and necessity.

Counsel for Petitioners
Morton L. Simons, Barbara M. Simons
Simons & Simons
5025 Linnean Ave. NW, Washington DC 20008
(202) 244-1819

Counsel for Respondent
Jerome M. Feit, Solicitor
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0177

Before WILLIAMS, SENTELLE, and RANDOLPH, Circuit Judges.