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Docket Number: _________
UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT
In Re Minisink Residents for Preservation of the Environment and Safety
Petition of Writ for Emergency Stay Under the All Writs Act
BRIEF AND REQUIRED SHORT APPENDIX OF PETITIONERS, MINISINK RESIDENTS FOR PRESERVATION OF THE
ENVIRONMENT AND SAFETY
Carolyn Elefant LAW OFFICES OF CAROLYN ELEFANT 2200 Pennsylvania Avenue NW, Fourth Floor Washington D.C. 20037 Phone: 202-297-6100 Email: [email protected] Attorney for the Petitioners, Minisink Residents For Preservation Of The Environment And Safety
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
In Re: Minisink Residents for ) Environmental Preservation ) Docket No. __________ and Safety (MREPS) )
RULE 26.1 DISCLOSURE STATEMENT
The Minisink Residents for Environmental Preservation and
Safety (MREPS), petitioner in the above captioned proceeding, is an
unincorporated association comprised the following residents of
Minisink, New York: Laurie Arias, Leanne Baum, Asha Canalos,
Karen Gartenberg, Deborah Lain, Pramilla Malick, Michael Mojica,
John Odland, Carolyn Petschler and Tom Salamone. MREPS was
formed for the purpose of opposing a 12,600 horsepower compressor
station proposed by Millennium Pipeline LLC which would be
located within Minisink between 650 to 2500 feet of MREPS’
members’ homes. In July 2011, Millennium filed at the Federal
Energy Regulatory Commission (FERC) a Section 7 certificate for
public necessity and convenience under the Natural Gas Act to
construct and operate the compressor station.
MREPS members are directly impacted by the proposed
compressor station. The compressor station will spew toxic emissions
and inflict industrial level noise on this residential-rural community.
Millennium will also raze trees on the site (which it owns), removing
the visual barrier between MREPS members’ homes and the
compressor station thereby reducing property values. Several
MREPS members own small organic farms which may be adversely
impacted by toxic emissions and agricultural opportunities will be
limited in light of Millennium’s destruction of farmland.
MREPS does not have any parent corporation or or any
publicly held corporation that owns ten percent or more of its stock.
Respectfully submitted,
_________________________________ Carolyn Elefant LAW OFFICES OF CAROLYN ELEFANT 1629 K Street N.W. Suite 300 Washington D.C. 20006 (202) 297-6100 [email protected]
Counsel to MREPS
Dated October 4, 2012 WASHINGTON DC
Table of Contents I. INTRODUCTION: Extraordinary times demand extraordinary remedies ................. 4 II. BACKGROUND.................................................................................................................... 4
A. The Parties ......................................................................................................................... 4 B. Procedural History .......................................................................................................... 5
1. Millennium proposal and Wagoner Alternative ...................................................... 5 2. Commission Order ........................................................................................................ 7 3. Commencement of Construction ................................................................................ 9
II. STANDARD OF REVIEW ................................................................................................. 11 III. ARGUMENT........................................................................................................................ 11
A. The statutory remedy is inadequate where petitioners seek a stay of a non-final Commission order. ................................................................................................................. 11 B. MREPS is facing irreparable harm now! ..................................................................... 13
1. Razed trees and destruction to farmland will take generations to restore and adverse impacts to property values will remain ............................................................ 13 2. It is not clear whether the Commission can order removal of the compressor station even if the order is reversed terminate Millennium’s service to third party customers once it has commenced and the order is reversed. ..................................... 17
B. There is a strong likelihood of success on the merits where an agency misapplies its own policy and issues a divided ruling. ........................................................................ 18 C. Millennium does not face any harm if a stay is granted. ............................................ 20
4. Justice requires a stay.................................................................................................. 21 IV. CONCLUSION ................................................................................................................ 22
Table of Authorities
Cases
*American Gas Association v. FERC, 593 F.3d 14 (D.C. Cir. 2010) .............................................................. 20
Ashland Oil, Inc. v. FTC, 409 F. Supp. 297, 307 (D.D.C.), aff'd, 179 U.S. App. D.C. 22, 548 F.2d 977 (D.C. Cir. 1976) ......................................................................................................................................................... 14
*Canal Authority of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974) ........................................................ 15
City of Centralia v. FERC, 213 F.3d 742 (D.C. Cir. 2000) ............................................................................. 3, 19
City of Idaho Falls v. FERC, 629 F.3d 222 (D.C. Cir. 2011) ......................................................................... 3, 19
Mine Reclamation Corp. v. FERC, 30 F.3d 1519 (D.C. Cir. 1994) .................................................................. 20
*Nevada v. Department of Energy, 457 F. 3d 78 (D.C. Cir. 2006) ................................................................... 4
Parker v. United States, 309 F.Supp. 593 (D. Colo 1970) ................................................................................... 14
Piedmont Environmental Council v. FERC, 558 F.3d 307 (4th Cir. 2008) ............................................. 3, 19
Public Utility Commission v. Bonneville Power Admin., 767 F.2d 622, 630 (9th Cir. 1985) ............... 3
Public Utility District v. FERC, 471 F.3d 1053 (D.C. Cir. 2004) ................................................................. 3, 19
*Reynolds Metal Company v. FERC, 777 F.2d 760, 762 (D.C. Cir. 1985) .................................................. 12
Virginia Petroleum Jobbers, 259 F.2d at 925 ........................................................................................................... 17
Way of Life Television Network, Inc. v. Federal Communications Commission, 593 F.2d 1356, 1359 (D.C.Cir.1979) ......................................................................................................................................................... 20
*West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971) ... 15
*Wisconsin Gas v. FERC, 758 F.2d 669 (D.C. Cir. 1985) ..................................................................... 11, 14, 21
Statutes
15 U.S.C. §717f ......................................................................................................................................................................... 5
717r(a) of the NGA .............................................................................................................................................................. 13
Regulations
139 FERC ¶61,037 (2012) ................................................................................................................................................... 16
*88 FERC ¶61,227 (1999) ..................................................................................................................................................... 9
90 FERC ¶61,128 ................................................................................................................................................................ .... 9
FERC Cases
Millennium Pipeline Company, LLC, Order Issuing Certificate, 140 FERC ¶61,045 (July 17, 2012) .. 4
Sabine Pass Liquification LLC, 140 FERC ¶61,076 (2012) ....................................................................................... 2
I. INTRODUCTION: Extraordinary times demand extraordinary
remedies
Injunctive relief under the All Writs Act is an extraordinary remedy.
But this petition for an emergency stay of the certificate of public necessity
and convenience approved by a 3-2 majority of the Federal Energy
Regulatory Commission (Commission) authorizing Millennium Pipeline’s
Minisink Compressor Station under Section 7 of the Natural Gas Act1
Confronting the prospect of a noisy, emission-spewing 12,600-
horsepower compressor station a stone’s throw from their homes, the
Minisink Residents for Preservation of the Environment and Safety
(MREPS) could have employed tactics commonly invoked by project
opponents such as “fly-specking” the Commission’s environmental
analysis (EA)
involves an extraordinary set of facts.
2
1 Millennium Pipeline Company, LLC, Order Issuing Certificate, 140 FERC ¶61,045 (July 17, 2012) (Certificate Order).
or converting the proceeding into a referendum on
2 Nevada v. Department of Energy, 457 F. 3d 78 (D.C. Cir. 2006) (“It is well settled that the court will not "flyspeck" an agency's environmental analysis, looking for
2
fracking.3 They did not. Instead, MREPS members sua sponte identified the
environmentally and operationally preferable Wagoner Alternative4
Having reviewed dozens of Commission rulings, this court can
appreciate both the improbability of a 3-2 decision and the strong
likelihood that MREPS will prevail if not on rehearing,
which
enable Millennium to meet its project objectives and was ultimately
endorsed by the Commission Chairman and another Commissioner who
dissented from the Certificate Order.
5
any deficiency no matter how minor.”)
then on judicial
review where reversal rates are far more common for divided Commission
3 Sabine Pass Liquification LLC, 140 FERC ¶61,076 (2012) (rejecting causal relationship between LNG export or pipeline construction and fracking activity). 4 Under the Wagoner Alternative, Millennium would construct a smaller compressor station at a site previously used by Millennium’s affiliate for a temporary compressor station and replace a seven-mile segment of aging pipeline which Millennium plans to replace in 2014 according to its own PowerPoint presentation. Attachment 3 (MREPS Rehearing Request at 12). 5 MREPS’ timely request for rehearing, which is a jurisdictional prerequisite to judicial review under the Natural Gas Act, 15 U.S.C. §717r, was filed on August 15, 2012 and is pending before the Commission. MREPS’ ability to prosecute its rehearing request has been hampered by the Commission’s delay in responding to outstanding FOIA requests filed by MREPS members. See Attachment 1A, Odland Affidavit at ¶ 9.
3
orders.6 Yet without an immediate stay of the Certificate Order MREPS
victory will ring hollow. Although MREPS understands courts’ reluctance
to preempt agency decision, without intervention, the case remains in a
state of regulatory limbo due to the Commission’s inaction since the
Natural Gas Act precludes MREPS from seeking judicial review or
bringing suit in another forum.7
While MREPS is stuck, Millennium plows forward. As of this writing,
Millennium has commenced preparatory work to construction
8
6 See, e.g., City of Idaho Falls v. FERC, 629 F.3d 222 (D.C. Cir. 2011)(vacating Commission order related to annual charges where Commissioner dissented below); Piedmont Environmental Council v. FERC, 558 F.3d 307 (4th Cir. 2008)(overturning Commission rule on authority for backstop siting where Commissioner dissented in issuance), American Gas Association v. FERC, 593 F.3d 14 (D.C. Cir. 2010)(remanding case to consider dissenting views of Chair Wellinghoff); Public Utility District v. FERC, 471 F.3d 1053 (D.C. Cir. 2004)(reversing Commission order based on vigorous dissent of Commissioner Massey); City of Centralia v. FERC, 213 F.3d 742 (D.C. Cir. 2000)(vacating hydro order following 3-2 vote by Commission).
and will
complete the compressor station before MREPS’ case reaches this court,
7 Public Utility Commission v. Bonneville Power Admin., 767 F.2d 622, 630 (9th Cir. 1985)(ruling that federal circuit court has exclusive authority over review of Commission order under Federal Power Act (analogous provision to NGA)) 8 Attachment 1B, Mojica Affidavit at ¶ 11.
4
thus restricting this court’s ability to grant relief. The damage resulting
from construction specifically, tree-removal, destruction of farmland and
associated diminution of property values – will not be undone for
generations. And even if this court reverses the Certificate Order, it is
unclear whether the Commission has authority to order Millennium to
cancel delivery to contract customers once the compressor station is in
service. Given MREPS’ likelihood of success on the merits, potential for
irreparable harm and lack of any other available remedy, an emergency
stay of the effective date of the Certificate Order and cessation of all
construction activity by Millennium pending a final decision is warranted
under the All Writs Act.
II. BACKGROUND A. The Parties
MREPS is an unincorporated community group comprised of the
following Minisink residents: Laurie Arias, Leanne Baum, Asha Canalos,
Karen Gartenberg, Deborah Lain, Pramilla Malick, Michael Mojica, John
Odland, Carolyn Petschler and Tom Salamone. The majority of MREPS
Members are located within 650 to 2500 feet from the proposed compressor
5
station site. Both MREPS as a group and each of its members individually
timely intervened in the docket below.
Millennium Pipeline (Millennium) is a Delaware limited liability
company owned by subsidiaries of NiSource, National Grid PLC and DTE
Energy. Millennium owns and operates a Commission-jurisdictional
natural gas pipeline system across southern New York. The Minisink
Compressor Station is the first installation of Millennium’s planned series
of upgrades to its pipeline which includes the Hancock Compressor Station
(now in pre-filing) and replacement of the Neversink segment (planned for
2014).9
B. Procedural History
1. Millennium proposal and Wagoner Alternative
On July 14, 2011, Millennium filed an application for a certificate of
public necessity and convenience for the Minisink Compressor Station
under Section 7 of the NGA, 15 U.S.C. §717f. According to Millennium’s
application, the 12,260 hp compressor station is necessary for Millennium
9 See Attachment 3, Rehearing Request at 12 (describing upgrades and citing Millennium Powerpoint presentation); see also Mojica Affidavit at ¶ 5.
6
to meet delivery obligations totaling 225,000 dekatherms of gas/day to
three contract shippers at an interconnection point with Algonquin Gas in
Ramapo, New York.
As proposed by Millennium, the Minisink Compressor would be
located on a site owned by Millennium within a half-mile of 200 residents,
and less than 700 feet from homes of several MREPS members. To
construct the compressor, Millennium would raze indigenous trees that
shield the site from nearby houses, disturb bald eagle nesting areas and
permanently destroy agricultural land. The compressor would endanger
the health and safety of residents with toxic emissions and inflict persistent,
industrial-level noise. Residential home values would plummet due to
proximity to an industrial nuisance and destruction of the character of this
agricultural, rural community.10
The Commission regulations require Millennium to identify project
alternatives as part of the application process. While Millennium listed a
few infeasible options, it never mentioned the possibility of siting a
10 Attachment 1B, Mojica Affidavit at ¶ 3, Attachment 3, Rehearing Request.
7
compressor at a nearby site adjacent to the Wagoner metering station
(which previously housed a compressor station operated by a Millennium
affiliate from 2008-2011) and replacing the aging seven-mile Neversink
segment of its pipe, an activity that Millennium was already planning to
undertake in 2014.11
2. Commission Order
Rather, it was MREPS members who brought the
Wagoner Alternative to the Commission’s attention, leading to reopening
of the comment period for public input on the Wagoner Alternative.
On July 17, 2012, a sharply divided Commission, by a 3-2 majority,12
Applying the first step of its Certificate Policy, the Commission majority
accepted Millennium’s claimed need for the Compressor Station based on
its existing precedent agreement and determined that existing customers
would not subsidize the cost of the Compressor Station. Having found
need and no subsidies, the Commission agreed with the finding of no
issued an order approving a certificate for the Minisink Compressor.
11 Attachment 1B, Mojica Affidavit at ¶6. 12 The majority included a concurrence by Commissioner Tony Clark, who had been sworn in on June 15, 2012, just a month earlier. See http://ferc.gov/about/com-mem/clark.asp
8
significant impact in the environmental assessment (EA) prepared by staff,
with nary a mention of the Wagoner Alternative. Accordingly, the
Commission approved the Millennium Compressor Station.
By contrast, dissenting Chairman Wellinghoff and Commissioner
LaFleur did not confine their review to Millennium’s proposal alone.
Instead, as required by the Commission’s own Certificate Policy, the
dissenting Commissioners took a more expansive view of the record, as
protection of the public convenience and necessity demands. Based on this
more comprehensive review, Chairman Wellinghoff concluded that:
I believe that the Millennium Pipeline should have considered the long-term effects of improved reliability, greater impact on capacity, reduced emissions and reduced fuel costs offered by the Wagoner Alternative and proposed that comprehensive solution in lieu of the short-term fix presented by Minisink.
Commissioner LaFleur also questioned the majority’s approach:
I am dissenting in this case because I do not believe that the majority has correctly applied the standards set forth in the Certificate Policy Statement to the facts in the record before us. Based upon that record, I believe that the serious adverse consequences of the Minisink compressor facility outweigh its
9
public benefits, particularly given the existence of the environmentally preferable Wagoner Alternative.
Indeed, Commissioner LaFleur even went so far as to state in
her dissent that the EA’s finding that the Wagoner Alternative “does
not offer significant environmental advantages over the proposed
project” is incorrect.13
3. Commencement of Construction
The Certificate Order took effect on the date of issuance. On August
15, 2012, MREPS filed a timely request for rehearing (Attachment 3) which
is pending at the Commission. MREPS challenged various aspects of the
order, including the Commission’s failure to follow its Certificate Policy
Statement,14
13 Attachment 3, Rehearing at 24.
unlawful segmentation of environmental review of the project
in violation of the National Environmental Policy Act (NEPA) and due
process violations arising out of lack of access to data relied on by the
Commission in its decision that MREPS members sought through the
14 88 FERC ¶61,227 (1999), order on clarification, 90 FERC ¶61,128.
10
Commission’s CEII process and Freedom of Information Act (FOIA)
requests.15
On August 24, 2012, Millennium reported that it complied with
the pre-construction conditions in the Certificate Order and sought
permission to commence construction. On August 28, 2012, MREPS
filed an emergency stay request, asserting that Millennium did not
satisfy the conditions and but that even if it had, a stay was necessary
to preserve the status quo pending rehearing and judicial review. See
Stay Request, Attachment 4. On September 18, 2012, the
Commission’s Office of Energy Projects approved Millennium’s
request to commence construction, and MREPS renewed its request
for a stay. Attachment 5. On October 1, Millennium crews began
arriving at the site, with tree clearing activity poised to begin any
day.
16
15 See Attachment 1, Odland and Mojica Affidavits. 16 Mojica Affidavit at ¶ 11.
11
II. STANDARD OF REVIEW
MREPS seek a stay under the All Writs Act provision of the U.S.
Code, 28 U.S.C. § 1651(a) which enables a reviewing court to protect its
prospective jurisdiction and applies when statutory remedies are
inadequate.17
III. ARGUMENT
Once a petitioner shows the lack of statutory remedy, the
well-established requirements governing motions for stay pending appeal
apply. Id. These include the likelihood of irreparable harm absent a stay,
likelihood that the movant will prevail on the merits, (3) the possibility of
substantial harm to other parties if the stay is granted; and (4) the public
interest in granting the stay. Wisconsin Gas v. FERC, 758 F.2d 669, 674 (D.C.
Cir. 1985).
A. The statutory remedy is inadequate where petitioners seek a stay of a non-final Commission order.
This court recognizes that “preliminary condition distinctive to All
Writs relief” – i.e., lack of statutory remedy – is satisfied when petitioners 17 Reynolds Metal Company v. FERC, 777 F.2d 760, 762 (D.C. Cir. 1985)(acknowledging that lack of statutory remedy condition is “arguably” satisfied when filed prior to issuance of final order by agency).
12
seek review of a non-final Commission order. In Reynolds Metal, the
Reynolds, an industrial customer of a utility invoked the All Writs Act for
an emergency stay of a Commission order that imposed immediate
financial obligations on the company but did not contain a commitment for
refunds if the order was reversed on appeal. Reynolds filed the emergency
stay while its request for rehearing of the Commission order was still
pending and therefore, the order was not yet final for judicial review. The
court held that:
since [the Commission Order] was not yet final, no direct appeal from it yet lay and a stay pending appeal was not available to prevent irreparable harm that was allegedly occurring.18
Finding no alternative relief by statute, the court held that the All Writs Act
had been properly invoked.
Here, MREPS has likewise properly invoked the All Writs Act. Like
the petitioner in Reynolds, MREPS’ request for rehearing of the Certificate
Order is pending, thereby precluding direct appeal under the NGA.
Moreover, the statute does not impose any deadlines by which the 18 Reynolds Metals, 777 F.2d at 762.
13
Commission must rule on either the rehearing request or MREPS’ motions
for stay, leaving a final ruling entirely within the Commission’s
discretion.19
B. MREPS is facing irreparable harm now!
As such, MREPS’ rehearing and stay requests may linger for
months before MREPS can seek judicial review and request a stay from the
court under Section 717r(c) of the NGA. Because this remedy will not
prevent irreparable harm caused by imminent construction, the
extraordinary relief offered by the All-Writs Act is the only available
option.
1. Razed trees and destruction to farmland will take generations to restore and adverse impacts to property values will remain.
The likelihood of irreparable harm is the gravamen of a claim for
injunctive relief. The injury must be “both certain and great,” and of such
imminence that there is a “clear and present need for equitable relief to
19 Under Section 717r(a) of the NGA, the Commission has 30 days to rule on a request for rehearing or it will be deemed final for purposes of judicial review. To allow itself additional time to rule on rehearing requests, the Commission may, as it has in this case, issue a tolling order granting rehearing for the limited purpose of considering the arguments raised. In this way, the Commission effectively tolls or stops the 30-day clock and prevents its order from becoming final before it has a chance to rule.
14
prevent irreparable harm.20
By contrast, MREPS readily satisfies this court’s exacting standards
for injunctive relief. In the absence of a stay of the effective date of the
certificate, Millennium will – indeed it has – commence construction of the
Minisink Compressor Station. As of this writing, Millennium has deployed
equipment to the site
This court sets a high bar for injunctive relief,
going so far in Wisconsin Gas, 758 F.2d at 675 as to chastise petitioners for
even filing a stay request based on specious, vague and speculative claims
of financial injury.
21
Multiple courts hold that tree-clearing constitutes irreparable harm.
and will begin to clear dozens of trees, adversely
impacting endangered species such as the Indiana bat and bald eagle
demolishing the visual screen that stands between the industrial eyesore
and MREPS’ members’ homes and community.
22
20 Wisconsin Gas, 758 F.2d at 675, citing Ashland Oil, Inc. v. FTC, 409 F. Supp. 297, 307 (D.D.C.), aff'd, 179 U.S. App. D.C. 22, 548 F.2d 977 (D.C. Cir. 1976).
21 Mojica Affidavit at ¶ 11. 22 Parker v. United States, 309 F.Supp. 593 (D. Colo 1970)(“we cannot give effect to [the interest of the industry, for the cutting of the trees, is as we have noted, too final
15
That ruling applies with equal force here where the Commission’s EA and
the dissenting Commissioners acknowledge that even with the replanting
required as mitigation, the visual screen provided by trees will take years
to regenerate.23
Millennium’s destruction of agricultural land is equally irreparable.
This damage to agricultural land is why the New York State Department of
Agriculture and Markets and the Orange County Planning Board strongly
In the meantime, the loss of trees has residual impacts on
property values, since a visible compressor station will reduce MREPS’
members’ home values.
and conclusive. It must await the processes of law.”); Canal Authority of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974)(alleging that flooding of trees would result in irreparable harm to river’s ecology), West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971)(noting that trees may not regenerate for several generations, so harm from removal is irreparable). 23 See Attachment 2, Commission Order, LaFleur Dissent at n. 5(noting that “the Compressor Station would be visible during most of the year and in the winter, significant portions would be visible from nearby residences but with the measures included in the visual screening plan for replanting trees, visual impacts would be minimized over time.
16
oppose construction on the property.24
Moreover, the damage to trees and loss of agricultural land is not
redressed by conditions in the certificate, as it was in National Fuel,
25 a case
where the Commission denied a stay of a certificate. In National Fuel, the
Commission explained that even if the compressor station was built while
rehearing was pending, so long as the developer complied with the terms
of the certificate, the anticipated harm would be fully mitigated. By
contrast, in this case, the certificate does not fully mitigate tree loss, land
loss and reduced property values.26
24 Attachment 2, Certificate Order, Wellinghoff Dissent (noting objections of NYS Agricultural Department).
Here, both the Environmental
Assessment and certificate order acknowledge that the replanting of trees
will somewhat minimize adverse visual impacts, but this would only be
25 139 FERC ¶61,037 (2012). 26 In National Fuel, a citizens group sought a stay of construction of a compressor station, arguing that impacts on air and water quality constituted irreparable harm. However, the Commission explained that even if the compressor station were built, so long as the developer complied with the terms of the certificate, the anticipated harm would be fully mitigated. By contrast, in this case, the certificate does not fully mitigate tree and land losses.
17
over a long period of time. Both Chairman Wellinghoff and Commissioner
LaFleur, in their respective dissents, emphasize that the loss of agricultural
lands is a long-term and lasting impact. Because the certificate does not
fully mitigate loss of trees and agricultural land, the harm caused by
Millennium’s compressor station is irreparable.
2. It is not clear whether the Commission can order removal of the compressor station even if the order is reversed and terminated, Millennium’s service to third party customers once it has commenced and the order is reversed.
In addition to the destruction of trees and agricultural land, this court
recognizes that the possibility that other corrective relief will not be
available at a later date weighs heavily in favor of a finding of irreparable
harm.27
27 Virginia Petroleum Jobbers Assn. v. FPC, 259 F.2d at 925 (D.C. Cir. 1958).
The absence of corrective relief is a real possibility here because
once Millennium completes the compressor station and begins service to
contract customers, the Commission may not have authority to order
termination of service even if the Certificate Order is vacated.
Millennium’s customers are third-parties and not subject to Commission
18
jurisdiction so it is not clear whether the Commission could order
Millennium to abandon service to those customers even if the Certificate
Order is reversed on appeal. See Section 717f(b) of the NGA (requiring
approval to abandon service).
Equally seriously, the certificate does not contain any provisions by
which the Commission could force Millennium to remove a non-
operational compressor station from the site. As a result, even if MREPS
prevails on appeal, its members and the Minisink community would
remain saddled with a non-functioning compressor station and the
concomitant reduced property values flowing from proximity to an
industrial eyesore.
Because the potential harm to MREPS and the agricultural
environment is substantial and cannot be reversed and because the
Commission may lack authority to fashion a remedy even if MREPS
prevails on appeal, MREPS satisfies the “irreparable harm” prong of the
Commission’s criteria for a stay.
B. There is a strong likelihood of success on the merits where an agency misapplies its own policy and issues a divided ruling.
19
MREPS faces a strong likelihood of success on the merits.
Millennium’s certificate was approved by the slimmest of margins; a three-
Commission majority, with Commissioner Clark concurring. Chairman
Wellinghoff and Commissioner LaFleur dissented, finding that the
Commission misapplied its own Certificate Policy and that the Minisink
Compressor was not in the public convenience and necessity in light of the
preferable Wagoner Alternative. Though often an administrative agency’s
findings are entitled to deference, appellate courts are often hard-pressed
to defer to a divided Commission. Indeed, the Commission’s orders are
most frequently overturned on appeal where at least one Commissioner
dissents.28
28 See, e.g., City of Idaho Falls v. FERC, 629 F.3d 222 (D.C. Cir. 2011)(vacating Commission order related to annual charges where Commissioner dissented below); Piedmont Environmental Council v. FERC, 558 F.3d 307 (4th Cir. 2008)(overturning Commission rule on authority for backstop siting where Commissioner dissented in issuance), American Gas Association v. FERC, 593 F.3d 14 (D.C. Cir. 2010)(remanding case to consider dissenting views of Chair Wellinghoff); Public Utility District v. FERC, 471 F.3d 1053 (D.C. Cir. 2004)(reversing Commission order based on vigorous dissent of Commissioner Massey); City of Centralia v. FERC, 213 F.3d 742 (D.C. Cir. 2000)(vacating hydro order following 3-2 vote by Commission).
20
Moreover, with regard to this particular case, MREPS raises at least
two errors where the law is unambiguous. First, MREPS argued (and the
dissenting Commissioners agreed) that the majority misapplied the
Commission’s Certificate Policy. As this court has stated, [i]t is a 'well-
settled rule that an agency's failure to follow its own regulations is fatal to
the deviant action.' "29 Second, MREPS argued that the Commission failed
to respond to the concerns of the dissenting commissioners, thus rendering
the order arbitrary and capricious as in American Gas Association v. FERC,
593 F.3d 14 (D.C. Cir. 2010) and other cases cited therein.30
C. Millennium does not face any harm if a stay is granted.
Because of the
strong likelihood that MREPS will prevail on appeal, a stay is necessary to
preserve the status quo to ensure that MREPS’ eventual victory is not
hollow.
While the harm to MREPS is irreparable in the absence of a stay, 29 Mine Reclamation Corp. v. FERC, 30 F.3d 1519 (D.C. Cir. 1994) citing Way of Life Television Network, Inc. v. Federal Communications Commission, 593 F.2d 1356, 1359 (D.C.Cir.1979). 30 MREPS asserted multiple other errors on rehearing, from unlawful segmentation violation of NEPA and due process violations arising out of delayed responses to MREPS’ CEII and FOIA requests. See MREPS Rehearing, Attachment 2.
21
Millennium would not be prejudiced if a stay is granted. To the contrary,
Millennium seeks to go forward with construction to meet the November 1,
2012 in-service date under its precedent agreements. But even if
Millennium fails to make the in-service date, under the terms of the
precedent agreement, Millennium does not face any financial liability.31
4. Justice requires a stay.
In
any event, any potential harm to Millennium from breach of the agreement
is purely an economic loss which in and of itself does not constitute
irreparable harm. Wisconsin Gas v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985).
MREPS and its members are neither a large corporation or
government agency, but a group of citizens who have devoted two years of
their lives to this matter. They have eschewed traditional NIMBY tactics
and instead developed a win-win solution for the community and
Millennium that garnered the support the Commission Chairman and a
second Commissioner. They abided by the Commission’s regulatory
process though hobbled by access to information, filing compliant
31 See supra n.1(describing terms of Precedent Agreements).
22
comments and challenges and following the procedures for obtaining CEII
and FOIA data critical to meaningful participation in the case.32
IV. CONCLUSION
Yet after
doing exactly what is expected of a party to an administrative process, all
of MREPS’ efforts are for naught if Millennium is permitted to complete
construction of the compressor station before MREPS has its day in court.
If justice does not require a stay under the facts presented here, then
frankly, there is no justice.
WHEREFORE, for the foregoing reasons MREPS asks this Court to
grant this request for an emergency stay under the All Writs Act, and stay
the effective date of the Certificate Order so as to halt Millennium, its
agents and contractors, from continuing with any further construction of
the Minsink Compressor Station, including blasting, tree clearing or
groundbreaking activity throughout the pendency of the rehearing request
and until such time as a final decision is issued judicial review.
32 See Attachment 1A, Odland Affidavit at ¶ 9 (describing delays in obtaining FOIA materials).
23
Respectfully submitted,
______________________________ Carolyn Elefant LAW OFFICES OF CAROLYN ELEFANT 2200 Pennsylvania Avenue NW, Fourth Floor Washington D.C. 20037 202-297-6100 [email protected] Dated October 4, 2012
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
In Re: Minisink Residents for ) Environmental Preservation ) Docket No. __________ and Safety (MREPS) ) Certificate of Service On October 5, 2012, I caused to be served the foregoing Writ by hand delivery on: Robert Solomon, Solicitor Federal Energy Regulatory Commission 888 First Street NE Wash DC 20426 Kimberly Bose Secretary Federal Energy Regulatory Commission 888 First Street NE Wash DC 20426 Joseph Koury Ryan Collins Counsel to Millennium Wright & Talisman 1200 G Street Northwest #600 Washington, DC 20005