United States Court of Appeals 

For the First Circuit 

No. 16-2100 

BERKSHIRE ENVIRONMENTAL ACTION TEAM, INC.; JEAN ATWATERWILLIAMS; RONALD M. BERNARD; CATHY KRISTOFFERSON; CHERYL D. 

ROSE; IRVINE SOBELMAN; PAULA L. TERRASI; SUSAN K. THEBERGE; 

ROSEMARY WESSEL; KATHRYN R. EISEMAN; ARIEL S. ELAN; ELLIOT 

FRATKIN; MARTHA A. NATHAN; KENNETH HARTLAGE; RONALD R. COLER; 

JANE WINN; HEATHER MORRICAL, 

Petitioners, 

v. 

TENNESSEE GAS PIPELINE COMPANY, LLC; MASSACHUSETTS DEPARTMENT OF 

ENVIRONMENTAL PROTECTION, 

Respondents. 

PETITION FOR REVIEW OF AN ORDER OF 

THE MASSACHUSETTS DEPARTMENT OF ENVIRONMENTAL PROTECTION 

Before 

Kayatta, Circuit Judge, 

Souter, Associate Justice,*

and Selya, Circuit Judge. 

Richard A. Kanoff, with whom Susan E. Stenger, Saqib Hossain, 

and Burns & Levinson LLP were on brief, for petitioners. 

Matthew Ireland, Assistant Attorney General, Environmental 

Protection Division, with whom Seth Schofield, Assistant Attorney 

General and Senior Appellate Counsel, Energy and Environment 

Bureau, Office of the Attorney General of Massachusetts, Maura 

Healey, Attorney General of Massachusetts, and Turner Smith, 

 * Hon. David H. Souter, Associate Justice (Ret.) of the 

Supreme Court of the United States, sitting by designation. 
Assistant Attorney General, Environmental Protection Division, 

were on brief, for Massachusetts Department of Environmental 

Protection. 

James L. Messenger, with whom Brian J. Wall, Gordon Rees 

Scully Mansukhani, LLP, J. Curtis Moffatt, and Mosby G. Perrow 

were on brief, for Tennessee Gas Pipeline Company, LLC. 

March 15, 2017 
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KAYATTA, Circuit Judge. In this unusual petition for 

review arising out of a state administrative proceeding, the 

petitioners themselves argue that we lack jurisdiction to hear 

their complaints about what has transpired to date before the state 

agency. Because the agency itself has not yet finally acted on 

the matter that is before it as is required to invoke our 

jurisdiction under 15 U.S.C. § 717r(d)(1), we agree and dismiss 

the petition. 

I. Background 

The Natural Gas Act ("NGA") requires a natural gas 

company to obtain from the Federal Energy Regulatory Commission 

("FERC") a certificate of public convenience and necessity before 

it may construct new natural gas transportation facilities or 

expand existing ones. 15 U.S.C. § 717f(c)(1)(A). FERC is 

responsible for coordinating all federal authorizations applicable 

to the process. Id. § 717n(b)(1). The NGA also expressly 

preserves the rights of states under the Coastal Zone Management 

Act of 1972, 16 U.S.C. §§ 1451–1466; the Clean Air Act, 42 U.S.C. 

§§ 7401–7671q; and the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251–

1388. See 15 U.S.C. § 717b(d). Under the CWA, any applicant for 

a federal license to construct or operate facilities that may 

result in discharge into navigable waters must "provide the 

licensing or permitting agency"--here, FERC--"a certification from 

the State in which the discharge originates or will originate." 
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33 U.S.C. § 1341(a)(1). The state, in turn, must evaluate the 

proposed project's compliance with certain provisions of the CWA 

and set forth limitations and monitoring requirements "necessary 

to assure that any applicant for a Federal license or permit will 

comply" with the CWA "and with any other appropriate requirement 

of State law set forth in such certification." Id. § 1341(d). A 

condition imposed under the state's certification "shall become a 

condition on any Federal license or permit subject to the 

provisions of this section." Id. 

On July 31, 2014, Tennessee Gas Pipeline Company, LLC 

("Tennessee Gas") applied to FERC for a certificate of public 

convenience and necessity, which FERC eventually issued in 

March 2016 subject to, among other things, filing of proof that 

Tennessee Gas has received "all applicable authorizations required 

under federal law (or evidence of waiver thereof)." In pursuit of 

one such authorization (or waiver thereof), Tennessee Gas 

submitted an application to the Massachusetts Department of 

Environmental Protection ("MassDEP") for water quality 

certification on June 30, 2015. On June 29, 2016, after almost a 

full year during which interested citizens and environmental 

organizations (including Petitioners) participated in a 

nontestimonial notice-and-comment process, Tennessee Gas received 

conditional certification for its proposed project in a letter 
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from the Western Regional Office of MassDEP signed by Wetlands 

Program Chief David Cameron. 

The letter contained over forty conditions to the 

project's approval, including a condition--"Condition 15"--

forbidding Tennessee Gas from conducting any "work subject to this 

Certification, including the cutting of trees," until "the 

expiration of the Appeal Period set forth below and any appeal 

proceedings that may result from an appeal." The conditional 

certification also described the appeal process, explaining that 

"[c]ertain persons shall have a right to request an adjudicatory 

hearing concerning certifications by the Department," including 

"[a]ny person aggrieved by this certification who has submitted 

written comments during the public comment period." In accordance 

with Massachusetts regulations on the subject, the conditional 

certification provided that any person who wished to appeal was 

required to submit a Notice of Claim for Adjudicatory Hearing 

within twenty-one days of the certification's issuance.

Petitioners took advantage of this provision, filing a 

Notice of Claim for Adjudicatory Hearing on July 20, 2016. In 

response, Tennessee Gas opposed Petitioners' request for a hearing 

and sought a stay of further administrative proceedings, claiming 

that once the agency had issued a conditional water quality 

certification, the state's involvement in the process was at an 

end, with any further review to be pursued through a petition to 
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this court. Petitioners disagreed, as did MassDEP, which denied 

Tennessee Gas's request for a stay and moved forward, scheduling 

a final decision to be issued by April 3, 2017. In early August 

2016, Tennessee Gas filed suit in the District of Massachusetts 

seeking to bar MassDEP from engaging in further review. 

Petitioners, in turn, hedged their bets. They filed the petition 

now before us in order to preserve some review of the June 29 

conditional water quality certification in the event that 

Tennessee Gas was correct. At the same time, they asked us to 

reject their petition on the grounds that Tennessee Gas is not 

correct; that is to say, they claim that our review is premature 

until MassDEP completes its adjudicatory process. 

II. Discussion 

A.

We begin with the language of the statute that grants us 

the jurisdiction putatively invoked by this petition. We have 

exclusive jurisdiction "over any civil action for the review of an 

order or action of a . . . State administrative agency acting 

pursuant to Federal law [in ruling on an application, as pertinent 

here, for a water quality certification under 33 U.S.C. 

§ 1341(a)(1)]." 15 U.S.C. § 717r(d)(1). In a literal sense, state 

agencies repeatedly take "action" in connection with applications 

for water quality certifications. They docket applications, 

review them, and express opinions about them. We see no reason, 
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though, to think that Congress wanted us to exercise immediate 

review over such preliminary and numerous steps that state agencies 

may take in processing an application before they actually act in 

the more relevant and consequential sense of granting or denying 

it. 

Pushing back on this common sense conclusion, Tennessee 

Gas points to the fact that § 717r(d)(1) employs the term "action," 

bereft of the modifier "final." This contrasts with, for example, 

the text employed in the Administrative Procedure Act ("APA"), 5 

U.S.C. § 704 ("Agency action made reviewable by statute and final 

agency action for which there is no other adequate remedy in a 

court are subject to judicial review."), and with the text of 15 

U.S.C. § 717r(b), which permits judicial review of FERC orders 

only after FERC's denial of an application for rehearing. 

Therefore, reasons Tennessee Gas, we should infer that, by 

authorizing our review of state agency action, Congress did not 

limit such review to final agency action. 

Such a negative inference might have interpretative 

force in dealing with some other subject matter. See generally, 

e.g., Barnhart v. Sigmon Coal Co., 534 U.S. 439, 452 (2002) 

(articulating the rule of statutory construction that courts 

should typically infer that Congress intends differences in 

statutory language to effect differences in statutory 

application). Here, though, the subject matter is judicial review 
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of agency action, which review Congress creates in the context of 

a long-standing and well-settled "strong presumption . . . that 

judicial review will be available only when agency action becomes 

final." Bell v. New Jersey, 461 U.S. 773, 778 (1973) (citing FPC 

v. Metro. Edison Co., 304 U.S. 375, 383-85 (1938)). To say that 

silence on the subject implies no requirement of finality would be 

to recognize this "strong presumption" only when it is of little 

benefit. 

It is also unclear that Congress's reference to FERC's 

internal review process in § 717r(b), coupled with the lack of a 

similar reference in § 717r(d)(1) to the internal review processes 

of state agencies, even raises the inference that Tennessee Gas 

claims. Rather, there is a more plausible explanation for 

Congress's decision to write the statute this way: unlike the 

FERC procedures described in § 717r(b), which are the same for any 

applicant proposing a project in any state or states, the state 

procedures giving rise to orders reviewable under § 717r(d)(1) may 

(and undoubtedly do) vary widely from jurisdiction to 

jurisdiction. Thus, whereas it is reasonable to interpret a 

reference to FERC's rehearing process as a signal that final agency 

action is required under § 717r(b), it does not make sense to draw 

the negative inference that the lack of a reference in § 717r(d)(1) 

to the variegated internal review mechanisms deployed by state 

agencies sends the opposite signal. Simply put, the text of 
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§ 717r(d)(1), on its own or read alongside § 717r(b), does not 

rebut the strong presumption that judicial review is available 

only following final agency action. 

Further reinforcement for the strong presumption 

restricting review until an agency has taken final action resides 

in Congress's numerous efforts to prevent states from unreasonably 

delaying the performance of their reserved roles in connection 

with natural gas projects. In connection with any permit required 

by federal law, § 717r(d)(2) authorizes the United States Court of 

Appeals for the District of Columbia to issue injunctive relief 

when a state agency "fail[s] to act" on such a permit in accordance 

with a schedule established by FERC. Where the permit is a water 

quality certification required by 33 U.S.C. § 1341(a)(1), a state 

waives its right in connection with a FERC application if it "fails 

or refuses to act on a request for certification, within a 

reasonable period of time (which shall not exceed one year) after 

receipt of such request.” Id. The very fact that Congress has 

granted us the unusual ability to review directly (and on an 

expedited basis, 15 U.S.C. § 712r(d)(5)) action by a state agency 

can itself be seen as further evidence that Congress sought to 

reduce the potential for the use of delay to block natural gas 

projects. Certainly nothing in the legislative history of 

§ 717r(d)(1) belies that perception. See Islander E. Pipeline Co. 

v. Conn. Dep't of Envtl. Prot., 482 F.3d 79, 85 (2d Cir. 2006) 
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("[A]pplicants . . . were encountering difficulty proceeding with 

natural gas projects that depended on obtaining state agency 

permits." (citing Regional Energy Reliability and Security: DOE 

Authorization to Energize the Cross Sound Cable: Hearing Before 

the H. Subcomm. on Energy & Air Quality, 108th Cong. 8 (2004) 

(statement of Rep. Barton), and Natural Gas Symposium: Symposium 

Before the S. Comm. on Energy & Nat. Res., 109th Cong. 41 (2005) 

(statement of Mark Robinson, Director, Office of Energy Projects, 

FERC))). A Congress that placed so much emphasis upon avoiding 

delay in the adjudication of requests for certification of this 

type would not likely have intended to authorize the delay that 

interlocutory reviews of every state agency action, final or not, 

would inevitably engender. 

Tennessee Gas contends that finding a final agency 

action requirement in § 717r(d)(1) nevertheless puts us at odds 

with the Second Circuit's decision in Islander East. In that 

decision, the court did not dismiss the case sua sponte for lack 

of subject matter jurisdiction even though, Tennessee Gas says, 

the state agency had not taken final action. Therefore, Tennessee 

Gas reasons, the Second Circuit must have construed § 717r(d)(1) 

to confer subject matter jurisdiction to review non-final agency 

action. See Tenn. Gas Pipeline Co. v. Del. Riverkeeper Network, 

921 F. Supp. 2d 381, 392–93 (M.D. Pa. 2013) (articulating this 

argument). We think it a stretch, however, to draw so sweeping an 
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inference from a court's rendering of a decision on the merits 

where the question of subject matter jurisdiction was not squarely 

before or even addressed by the court. The Second Circuit in 

Islander East evidenced no awareness that it might be reviewing an 

incomplete state agency action, as opposed to a completed state 

agency action for which state court review was not yet exhausted. 

See Islander East, 482 F.3d at 88 n.7. We therefore find little 

if any persuasive force in Tennessee Gas's reliance on that 

decision. 

Tennessee Gas also appears to argue that reading 

§ 717r(d)(1) to permit judicial review of only a state agency's 

"final action" would be tantamount to imposing an exhaustion of 

administrative remedies requirement where one is not provided by 

the statute. In that vein, the company urges us to adopt the 

reasoning of other courts that have found exhaustion of 

administrative remedies unnecessary to trigger the exclusive and 

original jurisdiction of a United States Circuit Court of Appeals 

under § 717r(d)(1). See, e.g., AES Sparrows Point LNG, LLC v. 

Wilson, 589 F.3d 721, 727 (4th Cir. 2009); Islander East, 482 F.3d 

at 88 n.7; Del. Riverkeeper, 921 F. Supp. 2d at 391–92. 

We disagree with Tennessee Gas's premise. Finding that 

a statute requires final agency action is different from finding 

that it requires exhaustion. "[T]he judicial doctrine of 

exhaustion of administrative remedies is conceptually distinct 
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from the doctrine of finality": whereas exhaustion "refers to 

administrative and judicial procedures by which an injured party 

may seek review of an adverse decision and obtain a remedy if the 

decision is found to be unlawful or otherwise inappropriate," 

finality "is concerned with whether the initial decisionmaker has 

arrived at a definitive position on the issue that inflicts an 

actual, concrete injury." Darby v. Cisneros, 509 U.S. 137, 144 

(1993) (second and third quotations quoting Williamson Cty. Reg'l 

Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 

193 (1985)). Each of the courts Tennessee Gas asks us to join was 

tasked with determining whether § 717r(d)(1) barred either a 

second, separate state agency or a state court from reviewing a 

state agency's final decision granting, conditioning, or denying 

a water quality certification. We, by contrast, are faced with 

the question whether a single agency must render a final decision 

before a United States Circuit Court of Appeals may take 

jurisdiction to analyze whether the decision was sound. 

We therefore conclude that there is ample reason to stick 

to the strong presumption restricting our review to final agency 

action of a type that is customarily subject to judicial review. 

B. 

The foregoing brings us to Tennessee Gas's alternative, 

and principal, argument: that the June 29, 2016, letter from 

MassDEP constituted final agency action granting its application, 
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albeit with conditions. Under this view, the continuing proceeding 

at MassDEP is in the nature of the type of appellate review that 

falls within the exclusive province of this court. 

An agency action is "final" only where it "represents 

the culmination of the agency's decisionmaking process and 

conclusively determines the rights and obligations of the parties 

with respect to the matters at issue." Rhode Island v. EPA, 378 

F.3d 19, 23 (1st Cir. 2004); cf. Bennett v. Spear, 520 U.S. 154, 

177–78 (1997) (holding that "final agency action" under the APA, 

5 U.S.C. § 704, must be "the 'consummation' of the agency's 

decisionmaking process," "must not be of a merely tentative or 

interlocutory nature," and "must be one by which 'rights or 

obligations have been determined,' or from which 'legal 

consequences will flow'" (first quoting Chi. & S. Air Lines, Inc. 

v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948); and then quoting 

Port of Bos. Marine Terminal Ass'n v. Rederiaktiebolaget 

Transatlantic, 400 U.S. 62, 71 (1970))). 

In form, there is something to Tennessee Gas's argument 

that the June 29 letter constituted final agency action. The 

MassDEP officials did issue a formal document that states "the 

Department grants a Water Quality Certification . . . subject to 

the following conditions . . . necessary to maintain water quality, 

to minimize impact . . . and to ensure compliance with appropriate 

state law." The regulations (and the certification itself) refer 
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to the adjudicatory hearing following an application for water 

quality certification as an "appeal." See, e.g., 310 Mass. Code 

Regs. § 1.01(1)(c) ("Adjudicatory Appeal or Appeal means the 

portion of an adjudicatory proceeding initiated by filing a notice 

of claim with the Department and concluded by a final decision."); 

314 Mass. Code Regs. § 9.09(1)(e) (referring to "the appeal period" 

and final decisions following "an appeal"); id. § 9.10 (describing, 

in a provision entitled "Appeals," the process of filing a notice 

of claim and engaging in an adjudicatory hearing). Where no 

adjudicatory hearing is sought and the certification is not further 

challenged in court, a water quality certification has the force 

and effect of law. See id. § 9.11 ("Failure to comply with . . . 

a 401 Water Quality Certification . . . shall be enforced [under 

regulatory provisions concerning administrative penalties]."). 

And the regulations neither refer to water quality certifications 

as "preliminary" or "proposed" nor require certifications or 

denials to include those words. 

The substance of the Massachusetts regulatory regime, 

however, shows the contrary: an initial letter granting a water 

quality certification subject to Condition 15, either before the 

twenty-one day window to request a hearing has lapsed or after a 

timely notice of claim is filed, is not a final agency action. 

Three aspects of the water quality certification that MassDEP 
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issued in this case and the regulatory regime that gave rise to it 

lead us to this conclusion. 

First, Massachusetts law makes clear that Tennessee 

Gas's application seeking a determination of its rights in the 

form of a water quality certification initiated a single, unitary 

proceeding, an essential part of which is the opportunity (of which 

petitioners have availed themselves) to have an adjudicatory 

hearing. Under Massachusetts law, "a proceeding before an agency 

in which the legal rights, duties or privileges of specifically 

named persons are required by constitutional right or by any 

provision of the General Laws to be determined after opportunity 

for an agency hearing" is an "[a]djudicatory proceeding." Mass. 

Gen. Laws ch. 30A, § 1(1). MassDEP regulations, in turn, provide 

that an adjudicatory proceeding "means a proceeding under 

[chapter 0A] that may culminate in an adjudicatory hearing and the 

Commissioner's issuance of a final decision." 310 Mass. Code Regs. 

§ 1.01(c). Those same regulations also define such a hearing as 

one in which "parties may present evidence on issues of fact, and 

argument on issues of law and fact prior to the Commissioner's 

issuance of a final decision." Id. No party disputes that, in 

the present context, such a presentation of evidence and arguments 

occurs after the issuance of a conditional certification, not 

before. 
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Second, the review to be provided in the adjudicatory 

hearing is a review of Tennessee Gas's application, rather than a 

review of a prior agency decision. MassDEP accords no deference 

to the preliminary findings included in the certification, see 

Conservation Comm'n of Falmouth v. Pacheco, 733 N.E.2d 127, 130 

(Mass. App. Ct. 2000), and the regulations expressly provide that 

the agency may even consider "new substantive issues arising from 

material changes to the scope or impact of the activity and not 

apparent at the time of public notice" from persons who did not 

participate in the notice-and-comment process, 314 Mass. Code 

Regs. § 9.10(1). When a notice of claim is timely filed following 

the issuance of a water quality certification, the agency's review 

of the proposed project continues more or less as though no 

decision has been rendered at all. 

Third, the manner in which Massachusetts has chosen to 

structure its internal agency decision-making strikes us as hardly 

unusual or contrived. It allows for unopposed actions to proceed 

to finality without the time and expense of full-blown adjudicatory 

proceedings, while preserving the parties' rights to such 

proceedings when sought. With the taking of evidence and de novo 

consideration, it bears the hallmarks of decision-making by expert 

administrative agencies rather than those of judicial review. Its 

chief drawback, as demonstrated here, is its duration. Congress, 

though, has addressed the matter of delay directly, see 15 U.S.C. 
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§ 717r(d)(2); 33 U.S.C. § 1341(a)(1),1 and by divesting states of 

their customary review of state agency orders and opinions in this 

field, see 15 U.S.C. § 717r(d)(1). We see no indication that 

Congress otherwise intended to dictate how (as opposed to how 

quickly) MassDEP conducts its internal decision-making before 

finally acting. See 33 U.S.C. § 1251(b) ("It is the policy of the 

Congress to recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and 

eliminate pollution, [and] to plan the development and use 

(including restoration, preservation, and enhancement) of land and 

water resources . . . ."); United States v. Cooper, 482 F.3d 658, 

667 (4th Cir. 2007) ("In the CWA, Congress expressed its respect 

for states' role through a scheme of cooperative federalism that 

enables states to 'implement . . . permit programs' like [the one 

at issue here.]"); S. Ohio Coal Co. v. Office of Surface Mining, 

Reclamation & Enf't, Dep't of Interior, 20 F.3d 1418, 1427 (6th 

Cir. 1994) ("[T]he CWA sets up a system of 'cooperative 

 1 Our consideration of the jurisdictional issue posed by this 

case leaves us with no occasion to consider whether, because 

MassDEP did not finally act on Tennessee Gas's application within 

one year, the requirement that Tennessee Gas obtain a water quality 

certification from the Commonwealth of Massachusetts has been 

waived. See 33 U.S.C. § 1341(a)(1). Nor have we considered the 

potential relevance of 15 U.S.C. § 717r(d)(2) (granting the D.C. 

Circuit "original and exclusive jurisdiction over any civil action 

for the review" of a state agency's "alleged failure to act . . . 

to issue, condition, or deny any permit required under Federal 

law" for a facility subject to NGA § 717f). 
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federalism,' in which states may choose to be primarily responsible 

for running federally-approved programs."); cf. Dominion 

Transmission, Inc. v. Summers, 723 F.3d 238, 240 (D.C. Cir. 2013) 

(noting that the NGA "expressly does not preempt" certain 

environmental protection laws like the Clean Air Act that 

contemplate a robust role for states). 

III. Conclusion 

There is, as yet, no order or action of MassDEP in 

connection with Tennessee Gas's application for a water quality 

certification that we may review under 15 U.S.C. § 717r(d)(1). We 

therefore dismiss the petition for review for lack of subject 

matter jurisdiction. Each party shall bear its own costs.