Earth Resources Company v. Federal Energy Regulatory Commission

Nos. 79-2191; -2193 (D.C. Cir. January 3, 1980)

ELR Digest

The court dismisses as not within its limited jurisdiction under the Alaska Natural Gas Transportation Act (ANGTA) petitions by the State of Alaska and an Alaskan energy company to review an order of the Energy Regulatory Commission (FERC) setting design specifications and initial capacity for the Alaska segment of the proposed pipeline to transport natural gas from the North Slope to the lower 48 states. The Act limits judicial review of agency decisions concerning the pipeline system to claims that constitutional rights have been denied, that the action is in excess of statutory authority or limitations, or that the action slights statutory rights. There is no doubt the FERC order, which approved the project sponsor's proposed pipeline diameter and pressure, was within the Commission's authority under the statute. The court determines that complainants have failed to state a valid due process objection to the FERC action because Alaska's desire to develop a petrochemical industry does not represent a constitutionally protected liberty or property interest. In addition, the Commission's decision regarding the pipeline's pressure is a prospective, legislative resolution of a general policy issue by rule making, and the usual due process rights associated with an adjudicatory hearing are thus inapplicable. The court finds itself unable to consider claims that FERC did not require detailed supporting exhibits or consider all relevant factors because these claims go to the order's reasonableness and the presence of substantial support in the record, issues as to which the Act forecloses judicial review. It also determines that the Energy Policy and Conservation Act of 1975, which requires that FERC, where consistent with the exercise of its legal authority, accompany and major regulatory action with a statement of the probable impact on energy efficiency and conservation, did not impose a statutory limitation on the Commission in this case in view of ANGTA's mandate to expedite issuance of certificates for the Alaska pipeline system. Finally, the court interprets the statutory preclusion of judicial review of the sufficiency of environmental impact statements (EISs) under the National Environmental Policy Act (NEPA) broadly to mean that review of NEPA compliance is prohibited for any issues relative to the pipeline, including pressure and capacity. The court thus lacks jurisdiction to review complainants' claim that FERC illegally failed to prepare a separate EIS on the pressure and capacity questions.

The full text of this opinion is available from ELR (13 pp. $1.75, ELR Order No. C-1206).

Counsel for Complainants
Robert H. Loeffler, Alan C. Johnston, Cathy R. Silak
Isham, Lincoln & Beale
1015 18th St. NW, Washington DC 20036
(202) 296-1580

Jacob P. Billig, Marc J. Fink
Billig, Sher & Jones
2033 K St. NW, Washington DC 20006
(202) 223-8270

Counsel for Respondent
Kristina Nygaard
Office of the General Counsel
Federal Energy Regulatory Commission
825 N. Capitol St., Washington DC 20426
(202) 357-8000

Counsel for Intervenor Alaska Northwest Gas Transportation Co.
Rush Moody, Jr., William J. Grealis
Vinson & Elkins
Suite 900, 1101 Connecticut Ave. NW, Washington DC 20036
(202) 862-6500

Wilkey, J., joined by Robb & Mikva, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]