Martin v. Federal Energy Regulatory Commission

No. 98-1398 (199 F.3d 1370, 50 ERC 1071) (D.C. Cir. January 25, 2000)

The court denies a property owner's petition to review the Federal Energy Regulatory Commission's (FERC's) authorization of the construction of a pipeline that would traverse part of the owner's historic property. The court first holds that it has jurisdiction to hear the claim. Although the landowner only designated the order denying rehearing in his petition for review, he made his intent to seek review of the order authorizing the pipeline fairly inerrable from his contemporaneous filings. His accompanying motion for stay provided FERC with notice of his intent to seek review of the certificate order. The court next holds, however, that FERC's order did not violate the National Environmental Policy Act (NEPA) or its regulations. Contrary to the landowner's assertions, a NEPA regulation does not require FERC to affirmatively address the consistency of proposed projects with state or local environmental plans. Moreover, no such inconsistency was raised before FERC. The court further holds that FERC did not violate the National Gas Act (NGA) by approving the pipeline. Although an NGA regulation states that pipelines should avoid places listed in the National Register of Historic Places. FERC properly considered the visual impact of the proposed pipeline on historic properties and the practicality of the alternative route before approving the pipeline. FERC rejected the alternative route because it would have required development of a new right-of-way in contravention of an NGA regulation requiring the utilization of existing rights-of-way. Additionally, the landowner's property was not listed on the National Register of Historic Places at the time of the proceedings, or at the time the rehearing was requested, and, therefore, no claim relating to listing on the National Register was raised before FERC.

The full text of this opinion is available from ELR (5 pp., ELR Order No. L-167).

Counsel for Petitioner
Frederick W. Martin
Law Offices of Frederick W. Martin
50 Village Ave., Dedham MA 02026
(781) 326-2288

Counsel for Respondent
Jay L. Witkin, Solicitor
Federal Energy Regulatory Commission
825 N. Capitol St. NE, Washington DC 20426
(202) 208-0200

[30 ELR 20299]

[NO TEXT IN ORIGINAL]