United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 20, 2015 July 21, 2015

No. 14-1062

GUNPOWDER RIVERKEEPER,

PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

COLUMBIA GAS TRANSMISSION, LLC,

INTERVENOR

On Petition for Review of Orders of 

the Federal Energy Regulatory Commission

Kenneth T. Kristl argued the cause and filed the briefs for 

petitioner.

Elizabeth E. Rylander, Attorney, Federal Energy 

Regulatory Commission, argued the cause for respondent. 

With her on the brief were David L. Morenoff, General 

Counsel, and Robert H. Solomon, Solicitor.

S. Diane Neal, Tyler Brown, and Paul Korman were on 

the brief for intervenor Columbia Gas Transmission, LLC in 

support of respondent. Fredric J. George entered an 

appearance.
2

Before: ROGERS and BROWN, Circuit Judges, and 

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

GINSBURG.

Opinion dissenting in part and concurring in the 

judgment filed by Circuit Judge ROGERS.

GINSBURG, Senior Circuit Judge: The Federal Energy

Regulatory Commission issued a certificate of public 

convenience and necessity to Columbia Gas Transmission, 

LLC, conditionally authorizing the company to extend a

natural gas pipeline in Maryland. Gunpowder Riverkeeper, 

an association of individuals who “work, live, and recreate 

along the Gunpowder River and its tributaries,” petitioned for 

rehearing, which the Commission denied. Gunpowder then 

petitioned this court for review of the Commission’s order

granting the certificate and Columbia intervened in support of 

the Commission. We deny Gunpowder’s petition for want of

a legislatively conferred cause of action.

I. Background

The Natural Gas Act (NGA) requires any party seeking to 

construct a facility for transporting natural gas first to obtain a 

certificate of public convenience and necessity from the 

Federal Energy Regulatory Commission. 15 U.S.C. 

§ 717f(c)(1)(A). With an exception not relevant here, the 

Commission grants a certificate only if the construction 

project “is or will be required by the present or future public 

convenience and necessity,” and conditions it upon “such 

reasonable terms and conditions as the public convenience 

and necessity may require.” 15 U.S.C. § 717f(e). 
3

In issuing a certificate, however, the Commission must 

comply with the separate statutory mandate of the National 

Environmental Policy Act (NEPA). See 42 U.S.C. 

§ 4332(2)(C). In accordance with the NEPA, every 

application for a certificate prompts an environmental review. 

Generally, the Commission first prepares an environmental 

assessment and, unless it determines the proposed project 

would have no significant environmental impact, it goes on to 

prepare a full-blown environmental impact statement. See 40 

C.F.R. § 1501.4. 

In addition, the Clean Water Act (CWA) requires every 

applicant for a federal permit authorizing any action that 

“may result in any discharge into the navigable waters” of the 

United States to submit to the permitting agency a 

certification from the appropriate state or interstate agency 

“that any such discharge will comply” with the CWA. 33 

U.S.C. § 1341(a)(1). 

Following the Commission’s issuance of the conditional 

certificate here at issue, Gunpowder filed a petition for 

rehearing on the ground that when the certificate was issued 

Columbia had not received from the State of Maryland the 

certification required by the CWA and that, absent that 

certification, “the cumulative impacts of the project 

cognizable under the [NEPA] are unknown.” The 

Commission denied Gunpowder’s petition for rehearing. 

The conditional certificate issued to Columbia authorized 

it to begin construction of the extension only after receiving 

all required permits, and only after obtaining further 

authorization from the Commission. Under Section 7 of the 

NGA, however, issuance of the conditional certificate enabled 

Columbia immediately to exercise the power of eminent 

domain to obtain “the necessary right-of-way to construct, 
4

operate, and maintain a pipe line” and to place any 

“equipment necessary to the proper operation of such pipe 

line.” 15 U.S.C. § 171f(h); see also, e.g., Columbia Gas 

Transmission LLC v. 0.85 Acres, More or Less, in Harford 

Cnty, Md, No. 1:14-cv-02288, 2014 WL 4471541 (D. Md. 

Sept. 8, 2014) (so interpreting the certificate).

* The 

conditional order required Columbia to “ensure that it restores 

and re-vegetates affected properties, which will minimize 

property value impacts, and ... compensate landowners for 

damages like tree loss.” 

Gunpowder here argues the Commission’s issuance of 

the conditional certificate of public convenience and necessity 

violated both the CWA and the NEPA. 

II. Analysis

We address first the court’s jurisdiction over this case 

pursuant to Article III of the Constitution of the United States. 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) 

(noting that jurisdiction must “be established as a threshold 

matter”). We then turn to the “zone of interests” analysis.

A. Jurisdiction

The Commission has called into question whether 

Gunpowder has standing under Article III to challenge the 

conditional certificate. Specifically, the Commission suggests 

that whether Gunpowder has standing is a “close call” 

because “[i]ts brief ... does not show that its members have 

suffered injury from actual or threatened eminent domain 

 

* Whether the certificate was correctly construed as authorizing 

Columbia to exercise the power of eminent domain is not before 

this court, and we do not decide it. 
5

actions.” If Gunpowder lacks constitutional standing, then 

this court lacks jurisdiction to address its petition for review. 

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61 

(1992). 

1. Standing

To invoke the jurisdiction of the court, an association 

acting on behalf of its members must show that “its members 

would ... have standing to sue in their own right, the interests 

at stake are germane to the organization’s purpose, and 

neither the claim asserted nor the relief requested requires the 

participation of individual members in the lawsuit.” Friends 

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 

U.S. 167, 181 (2000). A member of an organization would 

have standing if he, she, or it (1) “has suffered an ‘injury in 

fact’ that is (a) concrete and particularized and (b) actual or 

imminent, not conjectural or hypothetical”; (2) “the injury is 

fairly traceable to the challenged action of the defendant”; and 

(3) “it is likely, as opposed to merely speculative, that the 

injury will be redressed by a favorable decision.” Id. at 180-

81. 

Gunpowder points to affidavits of certain of its members 

to show they have suffered an injury in fact because their 

property is subject to eminent domain proceedings that have 

been or may be started by Columbia pursuant to its plan to 

extend its natural gas pipeline. We have previously held that 

a landowner made subject to eminent domain by a decision of 

the Commission has been injured in fact because the 

landowner will be forced either to sell its property to the 

pipeline company or to suffer the property to be taken through 

eminent domain. See B&J Oil & Gas v. FERC, 353 F.3d 71, 

74-75 (D.C. Cir. 2004). Contrary to the implicit premise of 

the Commission’s argument, it is not necessary in order to 
6

show injury that property already have been taken, or even 

that eminent domain proceedings have begun; it is enough 

that they have been deemed authorized and will proceed 

absent a sale by the owner.

*

 See id. at 75. The Commission’s

alternative argument — that our precedent is inapplicable

because in this case “it does not appear that the process will 

extinguish landowners’ property interest” — is similarly

bootless, as it addresses only the degree, not the fact, of the 

landowners’ injury. Finally, because the threat of eminent 

domain derives from the conditional certificate, the injury

would be redressed by a favorable decision of the court, 

which would require vacatur of the order granting the 

certificate. In sum, a member of Gunpowder against whom 

eminent domain proceedings have been instituted or 

threatened would have constitutional standing to pursue the 

present case. 

As for Gunpowder’s standing as an association to bring 

this case on behalf of its injured members, we note that 

Gunpowder’s undisputed purpose is to preserve and protect 

the Gunpowder River watershed. Gunpowder’s claims under 

the NEPA and the CWA are clearly germane to that purpose, 

as both statutes aim to prevent degradation of the natural 

environment. Finally, because Gunpowder’s petition for 

review concerns only the question whether the conditional 

certificate issued by the Commission is lawful, it is not 

necessary for any individual member of Gunpowder to 

participate in this proceeding in order to secure effective relief

for all its injured members. See Warth v. Seldin, 422 U.S. 

490, 515 (1975) (“If ... the association seeks a declaration, 

 

* Gunpowder has advised the court that, subsequent to its initial 

briefing, “Columbia won partial summary judgment in its 

condemnation action against [its] affiants.” For the reason stated 

above, however, we need not rely upon this extra-record 

development. 
7

injunction, or some other form of prospective relief, it can be 

reasonably supposed that the remedy, if granted, will inure to 

the benefit of those members ... actually injured”).

Gunpowder therefore satisfies the requirements for Article III 

standing.

2. Mootness

Because Maryland has issued the certification required 

by the CWA, Columbia argues Gunpowder’s petition for 

review is moot and therefore non-justiciable. See Loughlin v. 

United States, 393 F.3d 155, 169 (D.C. Cir. 2004) (describing 

the mootness doctrine as a “justiciability doctrine[]”). A case 

is moot if “events have so transpired that the decision [of the 

court] will neither presently affect the parties’ rights nor have 

a more-than-speculative chance of affecting them in the 

future.” Daimler Trucks N. Am. LLC v. EPA, 745 F.3d 1212, 

1216 (D.C. Cir. 2013).

Columbia’s argument fails because it disregards 

Gunpowder’s challenge under the NEPA, which is unaffected 

by issuance of the state certification required by the CWA. 

The disputed validity of Columbia’s conditional certificate, 

and the power of eminent domain that depends upon it,

therefore continue to present a live controversy. 

Consequently, the court has jurisdiction of the present 

controversy.

B. Zone of interests

In addition to constitutional standing, a plaintiff must 

have a valid cause of action for the court to proceed to the 

merits of its claim. See Natural Res. Def. Council v. EPA, 

755 F.3d 1010, 1018 (D.C. Cir. 2014) (denying a petition for 

review because the petitioner lacked a cause of action). 
8

Pursuant to the most recent teaching of the Supreme Court, 

we “presume that a statutory cause of action extends only to 

plaintiffs whose interests ‘fall within the zone of interests 

protected by the law invoked.’” Lexmark Int’l, Inc. v. Static 

Control Components, Inc., 134 S. Ct. 1377, 1388 (2014) 

(quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). 

In this case, Gunpowder claims an interest, and hence a 

cause of action, under each of three distinct statutes: the 

NGA, the NEPA, and the CWA. The Commission argues that 

Gunpowder’s asserted interest — avoiding harm to its 

members’ property rights — falls outside the zones of interest 

protected or regulated by the NEPA and the CWA, and that its 

alleged non-compliance with those statutes falls outside the 

zone of interests protected or regulated by the NGA. We 

conclude Gunpowder’s interest in protecting its members’ 

property from eminent domain in the face of alleged noncompliance with the NEPA and the CWA does not fall within

the zones of interest protected by any of the three 

aforementioned statutes.

1. The NGA

The NGA provides that “[a]ny party to a proceeding 

under this chapter aggrieved by an order issued by the 

Commission ... may obtain a review of such order.” 15 

U.S.C. § 717r(b). A party is “aggrieved” within the meaning 

of the NGA “if as a result of an order of [the Commission] it 

has sustained injury in fact to an interest arguably within the 

zone of interests to be protected or regulated” by the 

Commission under the NGA. Moreau v. FERC, 982 F.2d 

556, 564 (D.C. Cir. 1993) (citation and internal quotation 

marks omitted). A party may also be “aggrieved” within the 

meaning of the NGA if it “assert[s] an interest that is arguably 

within the zone of interests intended to be protected by the 
9

statute on which it relies” — even if that statute is not the 

NGA itself — in which case, however, the zone of interests

analysis is conducted with respect to the statute upon which 

the party relies. ANR Pipeline Co. v. FERC, 205 F.3d 403, 

408 (D.C. Cir. 2000). 

Although “the property interests of neighboring 

landowners arguably fall within the zone of interests the NGA 

protects,” Moreau, 982 F.2d at 564 n.3, the zone of interests 

of the NGA does not encompass injuries arising out of 

violations of other statutes, such as the CWA or the NEPA. 

Therefore, when a petitioner for review pursuant to the NGA 

implicitly invoked a separate statutory cause of action as the 

foundation of its claim, we proceeded to determine whether 

that petitioner’s interests came within the zone of interests 

protected or regulated by that separate statute. See ANR 

Pipeline Co., 205 F.3d at 407-08. In that case, as here, the 

petitioner argued the Commission had failed to comply with 

the NEPA. Id. at 407. We therefore treated the petitioner’s 

complaint as “a NEPA challenge” and proceeded to evaluate 

whether the petitioner’s grievance came within the zone of 

interests protected by the NEPA. Id. at 407-08. 

Here, Gunpowder has invoked both the NEPA and the 

CWA. We proceed accordingly to evaluate whether its 

interest falls within the zone of interests protected by either of 

those statutes.

2. The NEPA

The zone of interests protected by the NEPA is, as its 

name implies, environmental; economic interests simply do 

not fall within that zone. Id. (so noting with respect to the 

petitioner’s “economic interest” in suppressing competition). 

To be sure, a landowner is not disqualified from asserting a 
10

claim under the NEPA simply because it has an economic 

interest in defeating a challenged regulatory action, Realty 

Income Trust v. Eckerd, 564 F.2d 447, 452 (D.C. Cir. 1977) 

(“[A] party is not precluded from asserting cognizable injury 

to environmental values because his ‘real’ or ‘obvious’ 

interest may be viewed as monetary”), but it still must assert 

an environmental harm in order to come within the relevant 

zone of interests. Id. at 452 & n.10. As this court has 

explained specifically with respect to eminent domain as the 

source of an injury, “the ‘zone of interest’ under NEPA 

encompasses environmental values, read, of course, very 

broadly, but does not encompass monetary interests alone.” 

Id. at 452 n.11.

In this case, Gunpowder has alleged only that some of its 

members “are subject to actual or the threat of eminent 

domain proceedings now that will result in a loss of property 

rights.” Although the affidavits of Gunpowder’s members 

contain some assertions of injury that could be construed as 

environmental, see, e.g., Affidavit of SallyAnn & Michael 

Mickel, (stating affiants “feel the aesthetic, emotional, and 

physical loss of our trees”), the petitioner itself does not offer 

them in that spirit; indeed, Gunpowder does not invoke them 

for the purpose of showing environmental harm even in 

replying to the Commission’s argument that Gunpowder fails 

the zone of interests test under the CWA and NEPA. Cf. Bd. 

of Regents of the Univ. of Wash. v. EPA, 86 F.3d 1214, 1221 

(D.C. Cir. 1996) (noting that arguments not clearly raised in a 

party’s opening brief are generally considered to be forfeit). 

Because Gunpowder did not argue that its members would 

suffer any environmental harm — indeed, it expressly

disclaimed the need to do so — we conclude the petitioner
11

does not come within the zone of interests protected by the 

NEPA.*

3. The CWA

Although this circuit has never addressed the question 

whether an injury arising specifically by reason of eminent 

domain can sustain a claim under the CWA, that statute by its 

terms, like the NEPA, is aimed clearly and solely at 

preventing environmental harms. See 33 U.S.C. § 1251(a) 

(“The objective of this chapter is to restore and maintain the 

chemical, physical, and biological integrity of the Nation’s 

waters”). This court has therefore held that claims not aimed 

at “protect[ing] navigable rivers and streams from pollution” 

or at “requir[ing] those who desire to discharge pollutants into 

the waterways to obtain a permit for doing so” fall outside the 

zone of interests protected by the CWA. Citizens 

Coordinating Comm. on Friendship Heights, Inc. v. Wash.

Metro. Area Transit Auth., 765 F.2d 1169, 1173 (D.C. Cir. 

1985) (denying standing to a corporate plaintiff that alleged 

injury based upon the “seepage of diesel fuel into its ground 

water collection system and elevator pit”). Our sister circuits 

agree. See Dan Caputo Co. v. Russian River Cnty. Sanitation 

Dist., 749 F.2d 571, 575 (9th Cir. 1984) (denying standing 

under the CWA because the plaintiff’s claim “does not arise 

 

*

Judge Rogers asserts that “[t]he record before the Commission 

removes any doubt about whether petitioner’s interests are 

environmental,” but neither Sierra Club v. EPA, 292 F.3d 895 

(D.C. Cir. 2002), nor Nat’l Ass’n of Home Builders v. Army Corps 

of Engineers, 417 F.3d 1272 (D.C. Cir. 2005), relieves the 

petitioners of the obligation affirmatively to invoke an interest 

within the relevant zone of interests; at best, the decisions relieve 

petitioners of the burden of production associated with 

demonstrating that interest. In this case, the petitioner has simply 

not invoked an interest in preventing environmental harm.
12

from an interest in the environment, and does not seek to 

vindicate environmental concerns”); BP Exploration & Oil, 

Inc. v. EPA, 66 F.3d 784, 803 (6th Cir. 1995) (holding a 

petitioner alleging injury to its manufacturing business lacked 

standing to challenge effluent limitations promulgated under 

the CWA because economic harm “does not fall within the 

‘zone of interests’ that Congress sought to protect in enacting 

the CWA”). 

In keeping with Lexmark and the above-cited sources of 

guidance, we hold Gunpowder does not come within the zone 

of interests protected by the CWA because it did not allege its 

members would suffer any environmental harm. In sum, 

Gunpowder does not make a claim within the zone of interests 

of any of the three relevant statutes.

III. Conclusion

For the reasons set forth above, Gunpowder’s petition for 

review is

Denied.
ROGERS, Circuit Judge, dissenting in part and concurring in

the judgment: Petitioner Gunpowder Riverkeeper is an

environmental protection organization whose members live,

work, and engage in recreational activities in the river’s

watershed. Their ability to do so is directly threatened by the

pipeline project that the Federal Energy Regulatory Commission

has approved. Contrary to the court’s conclusion, that is

sufficient to demonstrate that its members have interests

protected by the National Environmental Policy Act (“NEPA”),

42 U.S.C. §§ 4321 et seq., and the Clean Water Act, 33 U.S.C.

§§ 1151 et seq. Petitioner’s merits contentions, however, are

unpersuasive, and I therefore concur in the judgment denying

the petition.

I.

To state a valid claim for relief, a petitioner’s interest must

be “arguably within the zone of interests to be protected or

regulated by the statute” whose violation is alleged. Ass’n of

Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153

(1970). The zone-of-interests test is not jurisdictional, but rather

a rule of statutory interpretation under which the court must

“presume that a statutory cause of action extends only to

[petitioners] whose interests fall within the zone of interests

protected by the law invoked.” Lexmark Int’l, Inc. v. Static

Control Components, Inc., 134 S. Ct. 1377, 1388 (2014)

(internal quotation marks omitted).

The zone-of-interests test “is not meant to be especially

demanding.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399

(1987). The Supreme Court has “always conspicuously included

the word ‘arguably’ in the test to indicate that the benefit of any

doubt goes to the plaintiff.” Match-E-Be-Nash-She-Wish Band

of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210

(2012). As a result, “the test forecloses suit only when a

[petitioner]’s interests are so marginally related to or

inconsistent with the purposes implicit in the statute that it
2

cannot reasonably be assumed that Congress authorized that

[petitioner] to sue.” Lexmark, 134 S. Ct. at 1389 (internal

quotation marks omitted). This forgiving version of the test

applies in the context of the Administrative Procedure Act

(“APA”), see Bennett v. Spear, 520 U.S. 154, 163 (1997), as

well as to challenges under the Natural Gas Act, 15 U.S.C.

§§ 717 et seq. The Supreme Court has explained that the

“lenient approach is an appropriate means of preserving the

flexibility of the APA’s omnibus judicial-review provision,

which permits suit for violations of numerous statutes of varying

character that do not themselves include causes of action for

judicial review.” Lexmark, 134 S. Ct. at 1389. The judicial

review provision of the Natural Gas Act, 15 U.S.C. § 717r(b),1

is also such a statute.

Accordingly, this court has concluded that the relevant zone

of interests for environmental statutes like NEPA “encompasses

environmental values, read, of course, very broadly.” Realty

Income Trust v. Eckerd, 564 F.2d 447, 452 n.11 (D.C. Cir.

1977). Thus, any petitioner who “arguably” asserts an

environmental interest, read “very broadly,” satisfies the test. 

The outer limits of the test are illustrated by this court’s

1

 15 U.S.C. § 717r(b) provides:

Any party to a proceeding under this chapter aggrieved by an

order issued by the Commission in such proceeding may

obtain a review of such order in the court of appeals of the

United States for any circuit wherein the natural-gas company

to which the order relates is located or has its principal place

of business, or in the United States Court of Appeals for the

District of Columbia, by filing in such court, within sixty days

after the order of the Commission upon the application for

rehearing, a written petition praying that the order of the

Commission be modified or set aside in whole or in part.
3

precedent holding that businesses and individuals asserting

purely monetary interests do not come within environmental

statutes’ zones of interests. Thus, the court has explained that

businesses “seeking to increase the regulatory burden on others

in order to advance their own commercial interests” do not come

within the Clean Air Act’s zone of interests. White Stallion

Energy Ctr., LLC v. EPA, 748 F.3d 1222, 1258 (D.C. Cir. 2014),

rev’d on other grounds, Michigan v. EPA, No. 14-46 (U.S. June

29, 2015); 42 U.S.C. § 7412. Similarly, a landlord protecting

“monetary interests alone” who “can at best claim only a

remote, insubstantial, highly speculative and ephemeral interest

in the environment” does not fall within NEPA’s zone of

interests. Eckerd, 564 F.2d at 452 n.11 (internal quotation

marks omitted). In Eckerd, the court suggested this was true of

the plaintiffs in Zlotnick v. Redevelopment Land Agency, 2

E.L.R. 20,235 (D.D.C. Mar. 3, 1972), who were owners of “an

empty downtown lot” and “d[id] not reside in the affected area,”

and who brought a NEPA challenge with “nothing but their own

financial interest to protect,” see id. at 20,235–36. Other circuits

have likewise concluded that NEPA does not protect an interest

that “is purely financial” because the statute “is directed at

environmental concerns, not at business interests.” Ashley

Creek Phosphate Co. v. Norton, 420 F.3d 934, 939 (9th Cir.

2005); see Latin Am. for Soc. and Econ. Dev. v. Adm’r of Fed.

Highway Admin., 756 F.3d 447, 465–66 (6th Cir. 2014); Clinton

Comm. Hosp. Corp. v. S. Md. Med. Ctr., 510 F.2d 1037, 1038

(4th Cir. 1975).

Nothing about petitioner Gunpowder Riverkeeper suggests

it is seeking to protect interests that are strictly financial. It is a

non-profit organization whose “general purpose is the protection

[of] the Gunpowder River watershed,” Petr.’s Br. 3, where its

“members live, work, and recreate,” id. at 17; Op. 2, 6. The

organization is “engaged in natural resource protection and

conservation” on behalf of its members, Petr.’s Br. 3, aiming to
4

“maintain and enhance the water quality and aquatic and natural

resources of the watershed,” id. It participated throughout the

Commission proceedings, raising issues related to water quality,

forest cover, and wildlife. See Pet. For R’hg, Docket No. CP13-

8-000, Nov. 10, 2014. Nonetheless, the court concludes

petitioner cannot invoke the protection of two environmental

statutes, Op. 10–12, because its “interests are so marginally

related to or inconsistent with” environmental concerns that

Congress could not have intended to allow its cause of action,

Lexmark, 134 S. Ct. at 1389 (internal quotation marks omitted). 

The court seizes on petitioner’s use of the word “property” and

not “environment” in its appellate brief as the reason for

concluding petitioner’s interests fall on the “purely financial”

side of the line and fail the zone-of-interests test. The court has

misapplied the test.

The appellate briefs alone make clear that petitioner falls

within the zones of interests of NEPA and the Clean Water Act. 

The organization’s sole purpose is to protect the Gunpowder

River and surrounding environment. See Petr.’s Br. 3. Its

members stand to lose the property on which they “live, work,

and recreate.” Id. at 17. Their loss of such opportunities is

different from the purely monetary interests of a business

seeking to impose regulatory costs on a competitor, see White

Stallion, 748 F.3d at 1258, or a company trying to steer business

its way through the regulation of distant land use, see Ashley

Creek, 420 F.3d at 939. Petitioner’s members are not absentee

landowners as in Zlotnick (and thus Eckerd), but actually live on

the property affected by the Commission’s challenged action. 

A decrease in the enjoyment of natural resources comes within

NEPA’s zone of interests. See, e.g., United States v. Students

Challenging Regulatory Agency Procedures, 412 U.S. 669,

684–85, 686 n.13 (1973). As a result of eminent domain, some

of petitioner’s members face the loss of that enjoyment. Under

the Supreme Court’s “lenient approach,” Lexmark, 134 S. Ct. at
5

1389, in which “the benefit of any doubt goes to the plaintiff,”

Patchak, 132 S. Ct. at 2210, that is enough for petitioner to

come within the zones of interests of NEPA and the Clean

Water Act.

The briefs also reference attached affidavits of petitioner’s

members. See Petr.’s Br. 15, 17; Reply Br. 6. Those affidavits

describe a litany of environmental interests that will be

adversely affected by the loss of property through eminent

domain. See, e.g., Le Gardeur Aff. ¶ 6 (“My livelihood and that

of my staff and guides is directly tied to the high quality, cold

water resources.”); id. ¶ 7 (members “work, live and recreate

along the Gunpowder River and its tributaries”); id. ¶ 15

(members “rely on drinking water” from watershed and thus

have “interests in [] protecting their drinking water from impacts

of the project”); Tedeschi Aff. ¶ 2 (describing reliance “on well

water for drinking etc. [and therefore] water quality is important

to us”); id. ¶ 5 (“Loss of the well jeopardizes the habitability of

the property.”); id. ¶ 7 (“[T]he well may be contaminated by this

process.”); Mickel Aff. ¶ 3 (interest in “maintaining a clean,

healthy water system for drinking, swimming, and fishing”); id.

¶ 7 (“We do feel the aesthetic, emotional and physical loss of

our trees.”); id. ¶ 9 (describing members as “people who live on,

work and love the land they own”); Merryman Aff. ¶ 4 (“My

brothers and I were raised on this farm where we swam and

fished in this creek.”); id. ¶ 6 (seeking to protect “large trees”

and “our well, seeps, springs” and other bodies of water). The

court strains credulity in describing these statements merely as

“assertions of injury that could be construed as environmental.” 

Op. 10 (emphasis added). Unsurprisingly, the court cites no

authority to support the possibility that such interests are not

environmental, for there can be no doubt that the interests

identified by petitioner’s members are at least “arguably within

the zone of interests to be protected or regulated by” both NEPA
6

and the Clean Water Act. Data Processing, 397 U.S. at 153

(emphasis added). 

The record before the Commission removes any doubt

about whether petitioner has and is now asserting environmental

interests. Petitioner conveyed to the Commission that it was

“fundamentally concerned with the cumulative environmental

impacts of this [pipeline] project on the waterways that provide

vital drinking water and recreational opportunities” to its

members. Pet. for R’hg, Docket No. CP13-8-000, Nov. 10,

2014, at 9–10. “Equally important” to petitioner’s members was

“the present condition of the adjacent lands of these waterways.” 

Id. at 10. When the administrative record makes a petitioner’s

standing “self-evident,” no more is required. Sierra Club v.

EPA, 292 F.3d 895, 899–900 (D.C. Cir. 2002). The court has

suggested that the same is true in the zone-of-interests context. 

See Nat’l Assoc. of Home Builders v. U.S. Army Corps of

Engineers, 417 F.3d 1272, 1286–87 (D.C. Cir. 2005). Yet the

court today has refused even to consider the administrative

record. While a petitioner must “affirmatively . . . invoke an

interest within the relevant zone of interests,” Op. 10 n.*,

petitioner has amply done so, not only before the Commission,

but in its briefs and affidavits submitted to the court.

Although petitioner has referred to its members’ “property

interests,” see Petr.’s Br. 15; Reply Br. 4, an interest in

“property” does not necessarily refer to commercial or financial

interests alone, as the standing affidavits and agency record

make plain. The asserted interest pertains to using that property

— which encompasses trees, water, wildlife, etc. — to “live,

work, and recreate.” Petr.’s Br. 17; Reply Br. 6 (citing Mickel

and Merryman affidavits). The use of the word “property” did

not magically transform petitioner’s members’ stated interests

in their natural environment into an interest in money alone. 

The court’s conclusion that their only interest is monetary is too
7

obtuse for a test that “is not meant to be especially demanding.” 

Clarke, 479 U.S. at 399.

No doubt, petitioner presented a zone-of-interests analysis

only for the Natural Gas Act, see Reply Br. 2–4, but in so doing,

petitioner conveyed more than enough to make clear that its

interests came within the environmental statutes’ zones of

interest. The court is “not limited to the particular legal theories

advanced by the parties.” U.S. Nat’l Bank of Or. v. Indep. Ins.

Agents of Am., Inc., 508 U.S. 439, 446 (1993); see Kamen v.

Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). Where the

correct analysis is as clear as it is here, there is no reason for the

court not “to identify and apply the proper construction of

governing law.” United States v. Duvall, 705 F.3d 479, 485

(D.C. Cir. 2013) (Williams, J., concurring in the judgment)

(quoting U.S. Nat’l Bank of Or., 508 U.S. at 446). The reason

petitioner focused on its members’ property rights likely stems

from its view that it only had to present a zone-of-interests

analysis under the Natural Gas Act because that statute provided

the cause of action, see 15 U.S.C. § 717r(b), supra note 1. 

Petitioner did not thereby suggest that it had no environmental

interests, or that it was not challenging the Commission’s action

to protect those interests. Such a concession would have

contradicted its organizational purpose, everything it argued to

the Commission during administrative proceedings, and

everything its members have told us in the standing affidavits

attached to its briefs.

Because the court has imposed a far more constricted

version of the zone-of-interests test than Supreme Court

precedent allows and this court has applied, I respectfully

dissent from the holding that petitioner does not have a cause of

action under the Clean Water Act or NEPA.
8

II.

Petitioner contends that the Commission’s decision granting

a conditional certificate of public convenience and necessity

violated the Clean Water Act and NEPA. Neither challenge is

persuasive.

A.

Petitioner challenges the Commission’s conditional

certification of the pipeline project as a violation of the

requirement in the Clean Water Act that federal agencies must

obtain approval from state regulators before approving projects

that might impact water quality. 

Under section 401(a)(1) of the Clean Water Act, before a

federal agency can issue a “license or permit to conduct any

activity including, but not limited to, the construction or

operation of facilities, which may result in any discharge into

the navigable waters,” it must receive “a certification from the

State in which the discharge originates or will originate . . . that

any such discharge will comply” with the state’s water quality

standards. 33 U.S.C. § 1341(a)(1). “No license or permit shall

be granted until the certification required by this section has

been obtained or has been waived.” Id. 

The Commission characterizes the challenged conditional

approval as an exercise of its authority under the Natural Gas

Act to impose conditions on a certificate of public convenience

and necessity, see 15 U.S.C. § 717f(e).2 But the Commission

has not suggested that its conditioning authority relieves it of the

2

 15 U.S.C. § 717f(e) provides: “The Commission shall have

the power to attach to the issuance of the certificate and to the exercise

of the rights granted thereunder such reasonable terms and conditions

as the public convenience and necessity may require.” 
9

need to comply with other federal statutes. To the contrary: The

challenged certificate includes a specific condition that before

construction could be authorized the pipeline owner must file

documentation showing “it has received all applicable

authorizations required under federal law (or evidence of waiver

thereof).” Certif. Order ¶ 8. The question presented by

petitioner, then, is not whether the Commission’s action was

permitted by the Natural Gas Act, but rather whether its action

was prohibited by the Clean Water Act.

The plain text of the Clean Water Act does not appear to

prohibit the kind of conditional certificate the Commission

issued here. On its face, section 401(a)(1) does not prohibit all

“license[s] or permit[s]” issued without state certification, only

those that allow the licensee or permittee “to conduct any

activity . . . which may result in any discharge into the navigable

waters.” 33 U.S.C. § 1341(a)(1). Petitioner has pointed to no

activities authorized by the conditional certificate itself that may

result in such discharge prior to the state approval and the

Commission’s issuance of a Notice to Proceed. In fact, the

Commission issued that Notice after the State of Maryland

issued its Clean Water Act certification approving the pipeline

project. The Commission’s conditional certificate thus

preserved the State’s “power to block the project” under

§ 401(a). City of Tacoma v. FERC, 460 F.3d 53, 67 (D.C. Cir.

2006).

This court has upheld conditional permitting in similar

circumstances. In City of Grapevine v. Department of

Transportation, 17 F.3d 1502, 1508–09 (D.C. Cir. 1994), the

court considered whether the Federal Aviation Administration

(“FAA”) could approve the construction of a runway

conditioned on the successful completion of the review process

required by the National Historic Preservation Act. That Act

provided that “prior to the approval of the expenditure of any
10

Federal funds on” a project that might impact an historic place,

the agency had to consult with the Advisory Council on Historic

Preservation and with state historic preservation officials. Id. at

1509 (quotation marks omitted). The court held that the FAA’s

conditional approval did not violate the Act because the FAA

“did not ‘approv[e] the expenditure of any Federal funds’ for the

runway,” id. at 1509 (quoting 16 U.S.C. § 470f), which is all

that the Act prohibited prior to consultation. Echoing the

circumstances here, the court explained that if the regulated

party “commits its own resources” to the project before the

condition is satisfied, “then it does so at the risk of losing its

investment” should the project ultimately not go forward. Id. at

1509. Similarly, in Public Utilities Commission of California v.

FERC, 900 F.2d 269, 282 (D.C. Cir. 1990), the court held that

the Commission had not violated NEPA by issuing a certificate

conditioned upon the completion of the environmental analysis.

The cases on which petitioner relies are inapposite because

they do not involve certificates conditioned on state approval. 

Petitioner points to PUD No. 1 of Jefferson County v.

Washington Department of Ecology, 511 U.S. 700 (1994), in

which the Supreme Court noted that “§ 401 of the [Clean Water]

Act requires States to provide a water quality certification before

a federal license or permit can be issued for activities that may

result in any discharge into intrastate navigable waters.” Id. at

707 (emphasis added). Exactly so: State certification is

necessary before the Commission authorizes “activities that may

result in any discharge into intrastate navigable waters.” Id. 

The discussion in PUD No. 1 on which petitioner relies merely

summarizes the language of the Act; it does not suggest that the

section 401(a)(1) prohibition might also reach activities that do

not have any impact on intrastate navigable waters. As the

Court stated in PUD No. 1, “[s]ection 401(a)(1) identifies the

category of activities subject to certification — namely, those

with discharges.” Id. at 711–12.
11

Similarly, in City of Tacoma, 460 F.3d 53, this court

addressed a different question: whether the Commission had to

determine that the state certification was in fact “the certification

required by [section 401(a)(1)].” 33 U.S.C. § 1341(a)(1); see

City of Tacoma, 460 F.3d at 67–68. In that context, the court

summarized section 401’s requirement by stating that “without

that certification, FERC lacks authority to issue a license.” Id.

at 68. First, the court had no occasion to address what kind of

“license” might comply with the Clean Water Act in different

circumstances; the Commission’s license in that case had not

been conditional on state certification because the state had

already issued what the Commission believed to be a valid

certification. See id. at 67. Second, the court’s description is

consistent with the plain text of section 401(a)(1): the

Commission “lacks authority to issue a license” to conduct

activities affecting intrastate navigable waters. Id. at 67–68. 

But that does not mean it also lacks authority to issue other

kinds of licenses; petitioner offers no reason to conclude the

Clean Water Act applies to all manner of regulated activities that

do not affect water quality.

B.

With regard to NEPA, petitioner challenges the adequacy of

the Commission’s Environmental Assessment, based on the

Commission’s reliance on other agencies’ environmental

analyses in determining that an Environmental Impact Statement

was unnecessary. See 42 U.S.C. § 4332(2)(C); 40 C.F.R.

§ 1508.9. But where this court has rejected an agency’s reliance

on other entities’ environmental analyses, see Idaho v. ICC, 35

F.3d 585 (D.C. Cir. 1994); Calvert Cliffs’ Coordinating Comm.

v. Atomic Energy Com’n, 449 F.2d 1109 (D.C. Cir. 1971), the

agency had failed to undertake any analysis of its own. That is

not the case here.
12

The Commission prepared a detailed Environmental

Assessment with specific and responsive discussions of issues

raised at public meetings and in written submissions, applying

its own observations and reasoning and explaining mitigating

steps that the pipeline owner would be required to take to

minimize the identified environmental impacts. The

Commission’s mention of other agencies’ certification processes

reflects a heathy appreciation of relevant views, not an

abdication of its own responsibilities or a negation of the

remainder of its own environmental analysis. Petitioner thus

fails to identify the fatal type of abdication that the court

disapproved in Idaho and Calvert Cliffs.

C.

Whether the Commission’s conditional certificate allowed

for the immediate exercise of eminent domain is not entirely

clear. The Natural Gas Act allows the use of eminent domain

pursuant to a certificate that authorizes “the construction or

extension of [] facilities,” 15 U.S.C. § 717f(c)(1)(A); see id.

§ 717f(e). The initial certificate issued by the Commission here

did not authorize any construction. Must the “holder of a

certificate of public convenience and necessity” described in the

eminent domain provision, see id. § 717f(h), be a holder of the

type of certificate described in § 717f(c) — that is, one who is

authorized to begin construction, extension, or operation of

facilities? If permitting eminent domain did not require the

approval of construction, then the Commission could authorize

the use of eminent domain for projects that are ultimately

rejected by the State under the Clean Water Act. Petitioner has

not presented a challenge stemming from any violation of the

Natural Gas Act, see Reply Br. 3, 14 n.7, and so resolution of

this question is for another day. See also Op. 4 n.*.

Accordingly, although I part from the court’s conclusion

that petitioner fails to come within the zones of interests of
13

NEPA and the Clean Water Act, I join the judgment denying the

petition.