United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 19, 2009 Decided March 13, 2009

No. 07-1007

DELAWARE DEPARTMENT OF NATURAL RESOURCES AND

ENVIRONMENTAL CONTROL,

PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

CROWN LANDING LLC AND STATOIL NATURAL GAS, LLC,

INTERVENORS

On Petition for Review of Orders

 of the Federal Energy Regulatory Commission

Scott H. Angstreich argued the cause for petitioner. With

him on the briefs were David C. Frederick, Daniel G. Bird,

Joseph R. Biden, III, Attorney General, Attorney General’s

Office of the State of Delaware, Kevin P. Maloney, Deputy

Attorney General, and Philip Cherry.

Samuel Soopper, Attorney, Federal Energy Regulatory

Commission, argued the cause for respondent. With him on the

brief were Cynthia A. Marlette, General Counsel, and Robert H.

Solomon, Solicitor.
2

1

The First State’s title to certain submerged lands within a twelvemile radius of the New Castle courthouse was conclusively determined

by the Supreme Court in New Jersey v. Delaware, 291 U.S. 361, 374

(1934).

Frederic G. Berner Jr. was on the brief for intervenor

Crown Landing LLC.

Before: ROGERS, Circuit Judge, and SILBERMAN and

WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

SILBERMAN, Senior Circuit Judge: Petitioner Delaware

seeks review of two FERC orders by which the Commission

conditionally approved an application to site, construct, and

operate a liquid natural gas terminal near the mouth of the

Delaware River. We dismiss the petition for lack of jurisdiction:

Delaware lacks standing because it has not suffered an injury-infact. 

I

In September 2004, Crown Landing LLC, a wholly-owned

subsidiary of BP America Production Company, filed an

application with the Commission to site, construct, and operate

a liquid natural gas import terminal at the mouth of the

Delaware River. Onshore portions of the proposed project were

to be located in New Jersey, but a pier designed for the

unloading of tanker ships was planned to extend beyond New

Jersey waters into that portion of the river which appertains to

neighboring Delaware.1
3

2

 Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594

(2005).

3

 In the event that the state fails to inform the federal government

of its decision within the allotted six month period, the state’s

Section 3 of the Natural Gas Act (“NGA”), 15 U.S.C.

§717b(a) et seq., prohibits the importation of foreign natural gas

without prior authorization by the Commission. As amended,2

the NGA confers upon the Commission the authority to approve

or deny applications for the “siting, construction, expansion, or

operation of a [liquid natural gas] terminal.” With certain

limitations, irrelevant here, approval orders may be issued

conditionally as the Commission deems necessary or

appropriate.

The NGA specifically provides for the protection of rights

granted to the states under the Coastal Zone Management Act of

1972 (“CZMA”), 16 U.S.C. § 1451 et seq., and the Clean Air

Act (“CAA”), 42 U.S.C. § 7401 et seq. Although the

mechanisms differ, both of these statutes mandate that federal

licensing authorities ensure compliance by proposed projects

with relevant state-based environmental programs.

The CZMA tasks the states with the development of coastal

zone protection programs in exchange for federal funding

incentives. Upon approval of such a program by the National

Oceanic and Atmospheric Administration, any applicant for a

federal license to conduct activities in a coastal zone must

certify that the proposed activity complies with the program

adopted by the affected state. A copy of this certification must

be furnished to the relevant state agency, which must inform the

federal government within six months whether or not it concurs

with the certification. Ordinarily, no license may be granted

absent state approval of this compliance certification.3
4

concurrence with the proposal is conclusively presumed.

However, if the Secretary of Commerce concludes, whether on

his own initiative or upon appeal by the applicant, that the

project is consistent with the objectives of the CZMA or

otherwise necessary on national security grounds, the state’s

pre-approval rights may be preempted and the project may

proceed.

The CAA similarly requires each state to adopt a plan to

implement, maintain, and enforce national air quality standards

within the state. Once the Environmental Protection Agency has

approved of a state plan, no department or agency of the federal

government is authorized to license any activity that fails to

conform with the plan. Federal agencies bear an “affirmative

responsibility” to ensure that any proposed project conforms

with the applicable state plan prior to approval. Under this

statute, there is no provision permitting a federal official to

override a state, but, on the other hand, there also does not

appear to be any mechanism for the state specifically to

disapprove a project.

Crown Landing did not file a CZMA certification with

Delaware but did request a status decision from the state (we

gather that a status decision is, in effect, a preliminary, yet

preemptive, decision). On February 3, 2005, the Delaware

Department of Natural Resources and Environmental Control,

petitioner here, issued its decision and rejected the project. On

appeal, Delaware’s Coastal Zone Industrial Control Board

unanimously affirmed that decision. Meanwhile, New Jersey

filed an original action before the Supreme Court challenging

Delaware’s jurisdiction to regulate the Crown Landing terminal

pursuant to its authority under the CZMA. The Supreme Court

confirmed that Delaware indeed possesses this authority. New

Jersey v. Delaware, 128 S. Ct. 1410, 1427-8 (2008).
5

4

 Order Granting Authority Under Section 3 of the Natural Gas

Act and Issuing Certificate, Crown Landing LLC; Texas Eastern

Transmission LP, Docket Nos. CP04-411-000, CP-04-416-000, 115

FERC ¶ 61,348 (June 20, 2006) (“Conditional Approval Order”). 

On June 20, 2006, the Commission issued an order

approving Crown Landing’s application subject to some sixtyseven conditions precedent.4

 The Commission acknowledged

that the Crown Landing proposal is subject to coastal zone

consistency reviews in New Jersey, Delaware, and Pennsylvania

and thus concluded that the company must obtain the

concurrence of the relevant state agencies prior to Commission

approval of the commencement of construction. See

Conditional Approval Order at ¶ 62,391; see also id. at ¶ 62,386.

Accordingly, final approval by the Commission is subject to the

condition that documentation of concurrence by the state of

Delaware evidencing the consistency of the project with the

state’s Coastal Management Program be submitted by the

company “prior to construction.” Id. App. A, at ¶ 20

(emphasis in original). The order contains a parallel condition

requiring pre-construction submission of an air quality analysis

specifically demonstrating conformity with applicable state

implementation plans under the CAA. Id. App. A, at ¶ 22. 

Delaware requested agency rehearing on the basis that the

Commission had exceeded its statutory authority by approving

the application under its NGA powers before the requirements

of the CZMA and CAA had been satisfied. In Delaware’s view,

issuance of an approval order–conditionally or otherwise–is

ultra vires conduct unless the Commission has first ensured

compliance with relevant state environmental programs.

Rehearing was denied. Order Denying Rehearing and Issuing

Clarification, Crown Landing LLC, Docket No. CP04-411-001,

117 FERC ¶ 61,209 (Nov. 17, 2006). Delaware’s petition for

review before this Court, filed in January 2007, was held in
6

abeyance pending resolution New Jersey’s original action before

the Supreme Court. Then the Commission, joined by Crown

Landing, moved to dismiss Delaware’s petition on grounds of

non-justiciability and lack of standing. We ordered the case

restored to the oral argument calendar, deferred the dismissal

motions, and ordered the parties to revisit their merits briefs in

light of the Supreme Court’s intervening decision.

II

As noted, FERC, along with intervenor Crown Landing,

challenges Delaware’s standing, asserting that the state lacks an

injury-in-fact, because FERC’s order is explicitly conditioned on

state approval under the CZMA (and CAA). Indeed, the state

has already exercised its CZMA authority to reject the project,

which has received the imprimatur of the Supreme Court. See

New Jersey, 128 S. Ct. at 1427-28. Delaware responds that it

has suffered an injury because it was entitled under both statutes

to block the project before FERC even proceeded to consider the

matter. In other words, FERC lacked statutory authority to issue

a conditional order, even if that condition preserved Delaware’s

right to veto the project.

Delaware argues that the CZMA unambiguously grants the

state priority in the approval process. The statute reads in

relevant part: “[n]o license or permit shall be granted by the

Federal agency until the state or its designated agency has

concurred with the applicant’s certification.” 16 U.S.C. §

1456(c)(3)(A). The CAA contains similar language. 42 U.S.C.

§ 7506(c)(1). The merits therefore depend upon whether

FERC’s conditional approval order constitutes a “license or

permit” within the meaning of these statutes.

Of course, in considering standing, we must assume the

validity of Delaware’s merits argument, i.e., that FERC violated
7

the statutory scheme by going ahead and issuing a conditional

order, because Delaware had a statutory right to go first (i.e.,

Alphonse ahead of Gaston). See Warth v. Seldin, 422 U.S. 490,

500 (1975); see also Emergency Coalition to Defend

Educational Travel v. Dep’t of Treas., 545 F.3d 4, 10 (2008);

Parker v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir.

2007), aff’d without reaching standing issue sub nom. District

of Columbia v. Heller, 128 S. Ct. 2783 (2008); City of Waukesha

v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003); Am. Fed’n of Gov’t

Employees, AFL-CIO v. Pierce, 697 F.2d 303, 305 (D.C. Cir.

1982). 

Still, we are unable to see how FERC’s allegedly illegal

procedure causes Delaware any injury in light of FERC’s

acknowledgment of Delaware’s power to block the project.

Delaware is apparently concerned that it will face intense

political pressure to acquiesce in FERC’s conditional approval

and reverse its own status decision–pressure it would somehow

avoid were FERC not to have acted at all. We could hardly

recognize this conjectural political dynamic as representing a

concrete injury or, indeed, any sort of legally-cognizable injury.

Delaware essentially is asking us to prevent it from changing its

own mind.

To be sure, Delaware mentioned in its brief and stressed at

oral argument that, under the CZMA, Crown Landing could

potentially appeal any Delaware denial directly to the Secretary

of Commerce. It is argued, therefore, that Delaware is not

adequately protected by FERC’s conditions. But as we read

FERC’s order, this is not so. The Commission conditioned its

approval on Delaware’s approval–which would be unaffected by

any subsequent action by the Secretary of Commerce. FERC’s

counsel dispelled any doubt on this score by unequivocally

assuring us at oral argument that any modification of the
8

5 It is not apparent that even if FERC allowed construction

to move forward based on a secretarial decision, Delaware

would have standing based only on their procedural (AlphonseGaston) theory, but, of course, Delaware would then have

standing to challenge FERC’s order and the Secretary’s decision

as an interpretation of the substantive statutes (including the

APA). In any event, this scenario–which was not raised in

Delaware’s opening brief–hardly presents a ripe controversy

now.

Commission’s position–including to recognize an intervention

by the Secretary–would require a new order.5

That leaves Delaware with the argument that it was injured

because it has suffered the loss of a statutory procedural

right–the right to precede FERC and thereby prevent a FERC

proceeding. Delaware’s difficulty is that an alleged procedural

injury does not confer standing unless the procedure affects a

concrete substantive interest. Lujan v. Defenders of Wildlife,

504 U.S. 555, 573 n.8 (1992). In its reply brief, arguing in the

alternative that the case is moot (and hence that FERC’s order

should be vacated), Delaware contends that because Crown

Landing has “announced publicly that it is ‘stopping work on the

project,’” the controversy has gone away. But this statement

implicitly concedes the obvious: that Delaware’s substantive

interest is the preventing of the construction of the project. Its

alleged procedural injury has no bearing on that interest, because

under FERC’s order the project cannot be resurrected without

Delaware’s approval. 

Delaware points to two cases to support its statutory

procedural right claim–one is ours and one the Fifth Circuit’s.

In Zivotofsky v. Secretary of State, 444 F.3d 614 (D.C. Cir.
9

6

 Delaware heavily relies on the Supreme Court’s statement in

Massachusetts v. EPA that state petitioners are “entitled to special

solicitude in [courts’] standing analysis.” 127 S. Ct. 1438, 1454-55

(2007) (quotation marks omitted). This special solicitude does not

eliminate the state petitioner’s obligation to establish a concrete injury,

as Justice Stevens’ opinion amply indicates. Indeed, the opinion

devotes a full section to the “harms associated with climate change,”

id. at 1455, on its way to holding in the state’s favor.

2006), we recognized that a child born in Jerusalem had

standing to insist that his U.S. passport record his birthplace as

Israel. But there the plaintiff claimed that the State Department

had violated a statutory right to receive this precise passport

alteration upon request; he did not assert a procedural injury at

all, nor was the alleged harm limited to speculative future

psychological effects, as the government argued. Rather, the

right to a proper listing of the child’s birthplace was a

substantive right conferred by Congress.

At first glance, Texas v. United States, 497 F.3d 491 (5th

Cir. 2007), seems more supportive of Delaware. Texas argued

that it had been subjected to an “invalid administrative process”

devised by the Secretary of the Interior to deal with approval of

Indian gaming activities. But the key to the court’s conclusion

that Texas had suffered an injury-in-fact was that Texas had

been deprived of an alleged statutory procedural protection–a

court finding on whether Texas had negotiated in bad faith–that

bore on the likelihood of an ultimate concrete injury, i.e., the

Secretary’s approval of an Indian gaming proposal. In that

regard, the case is no different from a failure to issue an

environmental impact statement that can affect whether or not

a project injurious to the plaintiff will be built. Lujan, 504 U.S.

at 573 n.7. See also Summers v. Earth Island Inst., 555 U.S. __,

No. 07-463, slip op. at 8-9 (Mar. 3, 2009).6
10

In sum, because FERC’s order–as it stands now–cannot

possibly authorize Crown Landing’s project absent the approval

of Delaware, the state has suffered no injury-in-fact, and thus

lacks standing.

For the foregoing reasons, the petition for review is

dismissed.

So ordered.