United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 19, 2014 Decided July 1, 2014

No. 12-1470

NO GAS PIPELINE,

PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

STATOIL NATURAL GAS, LLC, ET AL.,

INTERVENORS

Consolidated with 12-1474, 12-1475

On Petitions for Review of Order of the 

Federal Energy Regulatory Commission

John J. Zimmerman argued the cause for Environmental

Petitioners. With him on the briefs was Carolyn Elefant.

Jason T. Watson argued the cause and filed the briefs for

petitioner Jersey City. Derek S. Fanciullo entered an

appearance. 

Jennifer S. Amerkhail, Attorney, Federal Energy Regulatory

Commission, argued the cause for respondent. With her on the
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brief were David L. Morenoff, Acting General Counsel, and

Robert H. Solomon, Solicitor.

John P. Elwood argued the cause for intervenors. With him

on the brief were Anita R. Wilson, Andrew N. Beach, Jeremy C.

Marwell, Steven E. Hellman, Kirstin E. Gibbs, Christopher M.

Heywood, Peter P. Garam, and Shira R. Rosenblatt.

Before: HENDERSON and GRIFFITH, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

SENTELLE, Senior Circuit Judge: The Federal Energy

Regulatory Commission (“FERC”) entered an order granting a

certificate of public convenience and necessity for the

construction of a natural gas pipeline connecting New York and

New Jersey (“NJ-NY Project” or “Project”). The city of Jersey

City and a coalition of environmental groups filed separate

petitions for review on differing grounds. For the reasons set

forth below, we conclude that we do not have jurisdiction over

any of the petitions, and we will therefore dismiss all without

reaching the merits of any.

BACKGROUND

The Natural Gas Act (“NGA”) requires entities seeking to

construct natural gas facilities to obtain a certificate of public

convenience and necessity from FERC. 15 U.S.C.

§ 717f(c)(1)(A). In the proceeding under review, the

Commission granted such a certificate to two subsidiaries of

Spectra Energy Corporation, Texas Eastern Transmission, LP

and Algonquin Gas Transmission, LLC (collectively “Spectra”),

to expand its existing natural gas transportation pipeline in
3

Connecticut and New Jersey, and to extend a new pipeline from

New Jersey into lower Manhattan in New York. See Tex. E.

Transmission, LP, 139 FERC ¶ 61,138 P.7 (2012). 

Three environmentalist groups, NO Gas Pipeline, Sierra

Club, and Food & Water Watch (collectively “environmental

petitioners”), filed two petitions for review of the order, alleging

that FERC did not comply with the National Environmental

Policy Act, 42 U.S.C. § 4321 et seq., in the proceedings and

grant of the certificate. The city of Jersey City filed a separate

petition for review, arguing that FERC could not constitutionally

conduct the proceedings and grant the order because its financial

structure created “possible temptation” to be biased in favor of

pipeline companies, and also, that FERC exercised actual bias

in violation of “either Due Process or the APA.” Jersey City Br.

at 2. None of the petitions brings the order for review within the

jurisdiction of this court. The environmental petitioners lack

standing, and the petition of Jersey City raises questions not

preserved in the administrative proceedings.

In addition to the NGA requirement that entities seeking to

construct natural gas facilities obtain a certificate of public

convenience and necessity from FERC, the NEPA imposes

requirements on agencies such as FERC to prepare

environmental impact statements in compliance with the Act. 

42 U.S.C. § 4321 et seq. In processing the application of

Spectra, FERC issued a draft environmental impact statement

(“DEIS”) on September 9, 2011, and a final environmental

impact statement (“FEIS”) on March 16, 2012. In the course of

the environmental review, FERC received hundreds of

comments, including expressions of concerns over the level of

radon present in natural gas and radon’s effect on indoor air

quality. The Commission responded to these concerns,

ultimately concluding that radon from home use of natural gas

was not likely to pose a hazard, and citing factors which in
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FERC’s view would reduce radon in natural gas.

FERC approved the project on May 21, 2012. 

Environmental petitioners had moved to intervene on

January 26, 2011, and filed their concerns about the radon and

also about the possibility of cyber attacks on Spectra’s computer

systems, which they believed could result in explosions. After

the March 16, 2012, release of the FEIS, environmental

petitioners moved to supplement the record with a study

regarding radon from Marcellus Shale gas. Spectra requested

leave to respond on the radon issue and did so with a substantive

response and two additional radon studies. On May 21, 2012,

FERC issued its order granting the certificates of convenience

and necessity. See 139 FERC ¶ 61,138. In the order granting

the certificates, FERC addressed the radon issue and made

specific reference to the Marcellus Shale gas, noting that the

proposed pipeline expansion “is not designed to serve as a

gathering system for gas from Marcellus Shale.” Id. at P.73. 

Petitioners sought rehearing. On October 18, 2012, FERC

entered its order denying rehearing. 141 FERC ¶ 61,043. In the

rehearing order, FERC addressed the newly submitted radon

studies, id. at P.49-56, and the environmental petitioners’

comments concerning the risk of cyber attack on Spectra’s

control systems, id. at P.60-65. The environmental groups filed

their current petitions for review.

STANDING

We will not reach the merits of environmental petitioners’

claims, because we have no jurisdiction to do so. It is

fundamental to federal jurisprudence that Article III courts such

as ours are courts of limited jurisdiction. Therefore, “we must

examine our authority to hear a case before we can determine

the merits.” Wyo. Outdoor Council v. U.S. Forest Serv., 165

F.3d 43, 47 (D.C. Cir. 1999) (citing Steel Co. v. Citizens for a
5

Better Env’t, 523 U.S. 83 (1998)). In order for us to have

jurisdiction over a case or controversy, the party bringing the

claim bears the burden of establishing that it has standing. See,

e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). 

The “irreducible constitutional minimum of standing contains

three elements.” Id. at 560. These elements require that the

plaintiffs must have suffered first an “injury in fact”; second, the

injury must be “fairly traceable to the challenged action of the

defendant”; and third, the injury must be redressable by a

favorable decision in the litigation. Id. at 560-61 (internal

punctuation and citations omitted). Environmental petitioners’

claims founder on at least the first two of the required elements.

These petitioners seek to proceed under associational

standing. To establish Article III standing as an association, at

least one member must meet the three elements set forth in

Lujan. First, the member or members must have suffered an

“injury in fact”—that is, “an invasion of a legally protected

interest which is (a) concrete and particularized . . . and (b)

actual or imminent, not conjectural or hypothetical.” Id. at 560

(quotations omitted). Petitioners have provided the court with

affidavits demonstrating the reasons why their members object

to the pipeline, but nothing in the affidavits establishes an injury

in fact satisfying the constitutional minimum set forth in Lujan.

Environmental petitioners, or at least some of them, submit

declarations attesting that their members are “injured by the

certainty that radon levels in the residences will increase once

gas from sources that have higher radon levels . . . than currently

supplied gas begins to flow through [the proposed] pipelines into

their homes.” Env. Pets. Br. at 13 (emphasis added). This will

not carry petitioners’ burden of establishing standing. In order

to establish injury in fact, claimants must demonstrate

“concrete” injury. See, e.g., Occidental Permian Ltd. v. FERC,

673 F.3d 1024, 1026 (D.C. Cir. 2012). The “irreducible
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constitutional minimum” referenced in Lujan requires the

showing of “a concrete injury that has either transpired or is

‘imminent.’” Id. A “conjectural or hypothetical” injury is not

sufficient. See Lujan, 504 U.S. at 560. 

The affidavits from petitioners’ members express concerns

over injuries that have neither occurred nor become imminent. 

The increased risk to their health is something that may occur if

the pipeline or the pipeline suppliers tap into gas that has more

radon than the current mix; nothing occurs to alleviate any

increased radon in that case; the radon does not become diluted

by mixing with other gas; and the radon in fact reaches and

permeates their homes. Like the injuries claimed in Occidental

Permian, these concerns are “far too speculative to represent a

concrete injury” establishing standing. 673 F.3d at 1026

(internal quotation marks omitted).

Neither do petitioners’ declarations carry their burden with

respect to the second element of standing: causation. Causation

requires that the injury “be fairly traceable to the challenged

action of the defendant and not the result of the independent

action of some third party not before the court.” Lujan, 504 U.S.

at 560 (internal punctuation and citations omitted). For the

speculative injuries to occur here, the producers and transporters

of the gas would need to have chosen high radon shale gas as the

sole or predominant source of the gas transported by the project,

then transported and delivered the gas without in some fashion

diluting or processing it so as to reduce the radon content to

something approaching that of the gas petitioners are presently

receiving. Then, and only then, would the projected injury

become imminent, and possibly occur. Again, petitioners have

failed in carrying their burden of establishing standing. We will

not reach the merits of their radon-based claim, as we do not

have jurisdiction.
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Likewise, we lack jurisdiction over petitioners’ claims of

potential harm from the safety of the pipeline operations, and

specifically, the danger of cyber terrorism. Without rehashing

the requirements for establishing constitutional standing set

forth in the discussion of the radon claims, we note that the same

infirmities exist with respect to the second set of claims. There

is no showing that any such danger is either actual or imminent. 

There is no showing that it could occur without the intervening

acts of third parties. 

JERSEY CITY’S PETITION

Jersey City brings a claim more fundamental than that of

petitioners. We might also describe it as novel, and even

creative. Briefly put, the City contends that FERC cannot

constitutionally regulate the pipeline industry. In more detail,

Jersey City reasons that due process “requires fair adjudicative

proceedings before neutral and detached decisionmakers.”

Jersey City Br. at 14 (citing Ward v. Vill. of Monroeville, 409

U.S. 57, 59-60 (1972)). Thus, petitioner argues, the Constitution

mandates adjudicative proceedings free from actual bias, and the

appearance of bias. Id. (citing In re Murchison, 349 U.S. 133,

136 (1955)). Jersey City then analyzes the financial structure of

FERC and notes that under the applicable statutory scheme,

FERC receives its funding from the pipeline industry, not from

the taxpayers. Thus, Jersey City reasons, FERC is beholden to

the pipelines applying to it for certificates, and may not

constitutionally adjudicate their application.

Once again, we cannot consider the merits of the petition,

as we have no jurisdiction. This is true for multiple reasons. 

First, Jersey City asserts that we have jurisdiction under the

Natural Gas Act, 15 U.S.C. § 717r(b). That section provides

that any party “aggrieved by an order issued by the Commission

[in a proceeding under this chapter] may obtain a review of such
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order” in this court. But petitioner’s claim does not come within

the jurisdictional grounds of this statute. Although petitioner

claims to be an aggrieved party, it has not demonstrated how it

has been injured and indeed does not challenge any part of

FERC’s ruling either as to its reasoning, its findings, or any

decision in the administrative proceeding. The petition simply

does not meet the parameters of 15 U.S.C. § 717r(b). Jersey

City is not actually seeking review of the order.

Insofar as Jersey City sets forth a statutory quarrel, its

complaint is against the Budget Act and the financial structure

that it creates. It is that provision that sets forth the funding of

the Commission by assessments, not the Natural Gas Act, and

certainly not the order which Jersey City purports to bring

before us. Jersey City’s claims do not come within the

jurisdictional grant of § 717r(b).

We do not have original jurisdiction over claims arising

from the Budget Act. We have never seen a claim directly

parallel to the one asserted by Jersey City, but we have observed

in other contexts that “[i]nitial review occurs at the appellate

level only when a direct-review statute specifically gives the

court of appeals subject-matter jurisdiction to directly review

agency action.” Watts v. SEC, 482 F.3d 501, 505 (D.C. Cir.

2007). As we observed in Watts, “Congress is free to ‘choose

the court in which judicial review of agency decisions may

occur.’” Id. (quoting Five Flags Pipe Line Co. v. Dep’t of

Transp., 854 F.2d 1438, 1439 (D.C. Cir. 1988)). As we further

observed in Watts, “[b]ecause district courts have general

federal question jurisdiction under 28 U.S.C. § 1331, the

‘normal default rule’ is that ‘persons seeking review of agency

action go first to district court rather than to a court of appeals.’”

Id. at 505 (quoting Int’l Bhd. of Teamsters v. Pena, 17 F.3d

1478, 1481 (D.C. Cir. 1994)). There is no statute that takes this

petition outside that normal rule. The NGA gives us jurisdiction
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to review orders in proceedings under that Act, not claims

unanchored in pipeline proceedings but arising under the Budget

Act. We have no jurisdiction.

With respect to this conclusion, we stress the narrowness of

our jurisdictional holding. The precise direct-review statute at

issue in this case allows a party aggrieved by a FERC order

issued under the Natural Gas Act to “obtain a review of such

order.” 15 U.S.C. § 717r(b) (emphasis added). Here, however,

Jersey City does not target any aspect of FERC’s actual decision

and there is no claim properly before us that the process that

produced the decision was tainted by actual bias or some other

improper motivation. Instead, the City’s claim centers wholly

on another statute (the Budget Act), which lacks a direct-review

provision. Furthermore, the nature of the precise claim raised by

Jersey City—a constitutional challenge to FERC’s funding

structure—potentially implicates factual issues not explored in

the record (e.g., the extent to which FERC’s financial needs will

increase with time and the ability of existing pipeline companies

to absorb these costs and remain profitable) because the claim

is so tangential to the substance of the order. This prospect

further counsels against reading 15 U.S.C. § 717r(b) as granting

us jurisdiction over Jersey City’s claim because, as Congress

must surely be aware, this court, unlike the district court, is not

well equipped to make factual determinations. See Doe v. Gen.

Hosp. of Dist. of Columbia, 434 F.2d 427, 432 (D.C. Cir. 1970). 

Thus, given this unique set of circumstances, and with the

understanding that this opinion leaves intact our existing

precedent, see, e.g., AirLine Pilots Ass’n v. CAB, 750 F.2d 81

(D.C. Cir. 1984), as it must, see United States v. Carson, 455

F.3d 336, 384 n.43 (D.C. Cir. 2006) (per curiam) (“[W]e are, of

course, bound to follow circuit precedent absent contrary

authority from an en banc court or the Supreme Court.”), we

conclude that we lack jurisdiction.
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Again, lest we overlook anything which we should address,

we note that Jersey City has made no real attempt to

demonstrate standing. We further note that while Jersey City

asserts that there is actual bias and not merely an appearance, it

provides no foundation upon which we could review that claim. 

Its only asserted basis for the actual bias is that FERC has

consistently granted applications from pipelines. This adds

nothing to the strength of an otherwise unsupported claim. 

Presumably under most regulatory schemes, by the time

applicants and their expert counsel have worked through

changes, adaptations, and amendments, they are not likely to

pursue many certificates that are hopeless. The fact that they

generally succeed in choosing to expend their resources on

applications that serve their own financial interests does not

mean that an agency which recognizes merit in such applications

is biased.

We finally note that Jersey City’s alleged constitutional

claim of actual bias is also barred as untimely. Jersey City has

shown us nothing of record to establish that it raised this issue

before FERC’s issuance of the initial order. FERC regularly

rejects requests for rehearing that raise issues not previously

presented where there is no showing that the issue is “based on

matters not available for consideration . . . at the time of the

final decision.” 18 C.F.R. § 385.713(c)(3); see also Rehearing

Order P.19 and nn.29-30. As we have noted in the context of a

different agency, a disqualification request in a petition for

reconsideration to the agency comes too late. Lead Indus. Ass’n,

Inc. v. EPA, 647 F.2d 1130, 1174 (D.C. Cir. 1980) (“[A] litigant

who neglect[s] to present his constitutional claim to the

administrative agency in timely fashion [may] be precluded

from raising it before the reviewing court.”). For all the reasons

set forth above, Jersey City’s petition will also be dismissed for

lack of jurisdiction.
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CONCLUSION

In short, the petitions are dismissed.