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United States Court of Appeals for the District of Columbia Circuit
March 8, 2021, Argued; June 22, 2021, Decided
No. 20-1016 Consolidated with 20-1017
[**7] [*959] On Petitions for Review of Orders of the Federal Energy Regulatory Commission
Edwards, Senior Circuit Judge: In the action leading to this petition for review, the Federal Energy Regulatory Commission (the "Commission" or "FERC") issued a certificate of public convenience and necessity ("Certificate") under section 7(c) of the Natural Gas Act, 15 U.S.C. § 717f(c)(1)(A), to Intervenor-Respondent Spire STL Pipeline LLC ("Spire STL") to construct a new natural gas pipeline in the St. Louis area. ] The Commission may issue such a Certificate only if it finds that construction of the new pipeline "is or will be required by the present or future public convenience and necessity." Id. § 717f(e).
Pursuant to the Commission's "Certificate Policy Statement," Certification of New Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227 (Sept. 15, 1999), clarified, 90 FERC ¶ 61,128 (Feb. 9, 2000), further clarified, 92 FERC ¶ 61,094 (July 28, 2000), FERC first considers whether there is a market need for the proposed project. If there is a need for the pipeline, FERC then determines whether there will be adverse impacts on "existing customers of the pipeline proposing the project, existing pipelines in the market and their captive customers, or landowners and communities [***3] affected by the route of the new pipeline." Id. at 61,745. If adverse impacts on these stakeholders will result, the Commission "balanc[es] the evidence of public benefits to be achieved against the residual adverse effects." Id. In analyzing the need for a particular project, the Certificate Policy Statement makes it clear that the Commission will "consider all relevant factors." See id. at 61,747 (emphasis added).
The issue in this case arose in 2016, when Spire STL announced its intent to build a pipeline in the St. Louis metropolitan area. In August of that year, Spire STL held an "open season" during which it invited natural gas "shippers" to enter into preconstruction contracts, also known as "precedent agreements," for the natural gas the pipeline would transport. But no shippers committed to the project during the open season. Instead, after the open season finished without any takers, Spire STL privately entered into a precedent agreement with one of its affiliates, Laclede Gas Company — now known as Intervenor-Respondent Spire Missouri Inc. ("Spire Missouri") - for just 87.5 percent of the pipeline's projected capacity.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2 F.4th 953 *; 453 U.S. App. D.C. 1 **; 2021 U.S. App. LEXIS 18503 ***; 51 ELR 20120
ENVIRONMENTAL DEFENSE FUND, PETITIONER v. FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT, SPIRE MISSOURI INC. AND SPIRE STL PIPELINE LLC, INTERVENORS
Subsequent History: Rehearing denied by EDF v. FERC, 2021 U.S. App. LEXIS 26917 (D.C. Cir., Sept. 7, 2021)
Rehearing denied by, En banc EDF v. FERC, 2021 U.S. App. LEXIS 26918 (D.C. Cir., Sept. 7, 2021)
US Supreme Court certiorari denied by Spire Mo. Inc. v. EDF, 2022 U.S. LEXIS 2088 (U.S., Apr. 18, 2022)
Prior History: Spire STL Pipeline LLC, 169 F.E.R.C. P61134, 2019 FERC LEXIS 1706, 2019 WL 6242969 (F.E.R.C., Nov. 21, 2019)
pipeline, Certificate, affiliate, shipper, benefits, natural gas, policy statement, customers, petition for review, public benefit, environmental, station, injuries, adverse impact, transportation, contracts, adverse effect, assertions, aesthetic, balancing, projected, parties, orders, costs, proposed project, declaration, concrete, captive, tolling, arbitrary and capricious
Energy & Utilities Law, Regulators, US Federal Energy Regulatory Commission, Authorities & Powers, Natural Gas Industry, Natural Gas Act, Certificates of Need, Pipelines & Transportation, Certification & Licenses, Civil Actions, Jurisdiction, Pipelines, Administrative Law, Judicial Review, Standards of Review, Arbitrary & Capricious Standard of Review, Securities Law, US Securities & Exchange Commission, Arbitrary & Capricious Review, Reviewability, Reviewable Agency Action, Civil Procedure, Justiciability, Standing, Burdens of Proof, Constitutional Law, Case or Controversy, Elements, Evidence, Burdens of Proof, Allocation, Injury in Fact, Environmental Law, Assessment & Information Access, Administrative Proceedings & Litigation, Fundamental Rights, Procedural Due Process, Scope of Protection, Business & Corporate Law, Unincorporated Associations, Particular Parties, Third Party Standing, Special Proceedings, Eminent Domain Proceedings, State Condemnations, Eminent Domain Proceedings, Bill of Rights, Eminent Domain & Takings, Administrative Proceedings, Standards of Review, Admissibility, Procedural Matters, Rulings on Evidence, Relief From Judgments, Grounds for Relief from Final Judgment, Order or Proceeding, Vacation of Judgments, Real Property Law, Procedures