C.A. NO. 15-02345

IN THE UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT

WILDLIFE PROTECTION COUNCIL, ) Petitioner, )

) v. ) Docket No. CP15-234-000

) FEDERAL ENERGY REGULATORY COMMISSION, )

Respondent, and ) )

MAMMOTH PIPELINE, LLC, ) Intervenor. )

ON APPEAL FROM THE FEDERAL ENERGY REGULATORY COMMISSION

BRIEF ON BEHALF OF WILDLIFE PROTECTION COUNCIL

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Table of Contents Table of Authorities ....................................................................................................................... iv

Jurisdictional Statement .................................................................................................................. 1

Statement of the Issues Presented ................................................................................................... 2

Statement of the Case ...................................................................................................................... 2

Statement of the Facts ..................................................................................................................... 3

Summary of the Argument .............................................................................................................. 7

Argument ......................................................................................................................................... 8

A. The Court Applies the Arbitrary and Capricious Standard to Review FERC Actions Under

ESA and NEPA……………………………………………………………………...……….8

I. FERC Violated the ESA Because It Did Not Reinitiate Consultation with the FWS to Take into Consideration the New Information on the Aphid’s Impact to the Warbler’s Critical Habitat. ……..…………….………………………….…………10

a. FERC Is Required to Consult with the FWS about the ESA Matters Pertaining to the Warbler…………………………………………………………...…………...10

b. The Plain Language of the ESA Requires that FERC Reinitiate Consultation

with the Discovery of New Information……………………………………………………………….…...11

1. The Discovery of the Aphid’s Presence in the Endorean National Forest

and the Potential Hemlock Decimation is New Information That Was Not Previously Considered….….….….….….….…………………….…….12

2. FERC Was Required to Reinitiate Consultation with the with the FWS Because FERC Has a Continued…….….….….………………….…….14

II. FERC Erred in Considering the Economic Impact of Routing the Proposed

Pipeline to Avoid the Endorean National Forest in Its Suggestions for Reasonable and Prudent Alternatives to the Proposed Mammoth Pipeline Route……………………………….……………………………………………..15 a. FERC’s Consideration of the Economic Impact Was Not in Accordance with

Congressional Intent or Presiding Common Law……...……………………..15

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b. FERC Has Not Met Its Burden of Providing a Satisfactory Explanation for

Deviating from the Fish and Wildlife Service’s Biological Opinion Suggesting that FERC Recommend and Alternative Route to Avoid the Warbler’s Critical Habitat ……...…………………………………………………………………………17

c. For Evaluating Appropriate Consideration of Economic Impact Under the

ESA, This Court Should Rely on the Expertise of the FWS Rather Than FERC……………...…..………………………………………………………19

III. FERC Erred When It Issued Mammoth a Certificate of Public Necessity and

Convenience and Denied a Rehearing Because It Arbitrarily and Capriciously Violated NEPA……………………………………………………………………20 a. FERC Violated NEPA When It Failed to Include the Mitu Energy and NME

Gas Pipeline Projects in Its Cumulative Impact Analysis …………………...20

b. FERC Impermissibly Segmented Its NEPA Review ………………………...23

IV. FERC Failed to Identify and Assess All Reasonable Alternatives and Should Have Considered a Combination Alternative as an Alternative to the Mammoth Project………………………………………………………………………………..25

a. FERC Must Identify and Asses All Reasonable Alternatives to Proposed

Actions Under NEPA…………………………………………………………25

1. Reasonable Alternatives Are Those That Meet the Identified and Defined Objectives of the Federal Action………………………………………….25

i. The Identified and Defined Objective of the Mammoth Project Was to

Meet the Demands of Franklin’s Clean Energy Act…………………....26 ii. A Combination Alternative Is a Reasonable Alternative to the Mammoth

Project……………………………………..…………………………….26

b. FERC Was Obligated to Consider a Combination Alternative Because It Is an Energy Conservation Alternative……………………………………………..28

Conclusion ……………………………………………………………………………………...29

Certificate of Service……………………………………………………………………………30

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Table of Authorities

Supreme Court Cases

Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687 (1995)…………...17

Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87 (1983)………………………………………..8

Bennett v. Spear, 520 U.S. 154 (1997)………………………………………..……………..…..17

Bowen v. Am. Hosp. Ass'n, 476 U.S. 610 (1986)……………………………………..…….....9, 15

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Imc., 467 U.S. 837 (1984)…………………11

Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985)…………………………………….10

Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976)………………………………….…………….20

Motor Vehicle Mfr’s. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29

(1983)……………………………………………………………………………..……………….9

Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007)………………………...10

Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978)……………………………….……15, 16, 19

Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519

(1978)…………………………………………………………………………………..……….. 28

Circuit Court Cases

Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1032 (D.C. Cir. 2008)……………………23

B&J Oil & Gas v. FERC, 353 F.3d 71 (D.C. Cir. 2004)…………………………………...........19

Cape Hatteras Access Pres. All. v. U.S. Dep't of Interior, 731 F. Supp. 2d 15 (D.D.C. 2010)….19

City of Alexandria, Va. v. Slater, 198 F.3d 862 (D.C. Cir. 1999)…………………...……….25, 26

City of Waukesha v. EPA, 320 F.3d 228 (D.C.Cir.2003)………………………………………...19

Conservation Cong. v. Finley, 774 F.3d 611 (9th Cir. 2014)……………………………………12

County of L.A. v. Shalala, 192 F.3d 1005 (D.C.Cir.1999)…………………………….…………13

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Delaware Riverkeeper Network v. FERC, 753 F.3d 1304 (D.C.Cir.

2014)…………………………………………………………....……...…...8, 9, 20, 21, 22, 23, 24

Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393 (2d Cir. 2013)…………...….27

Found. on Econ. Trends v. Heckler, 756 F.2d 143, 154 (D.C. Cir.1985)………………………..21

Grand Canyon Trust v. FAA, 290 F.3d 339 (D.C. Cir.2002)………………………….…………21

Hill v. Tennessee Valley Auth., 549 F.2d 1064 (6th Cir. 1977), aff'd, 437 U.S. 153 (1978)..…...14

Michigan Consol. Gas Co. v. FERC, 883 F.2d 117 (D.C. Cir.1989)……………………………..8

Midcoast Interstate Transmission, Inc. v. FERC, 198 F.3d 960 (D.C. Cir. 2000)……..….….9, 14

Minisink Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d 97 (D.C. Cir. 2014)......25, 26, 27

Mount Graham Red Squirrel v. Madigan, 954 F.2d 1441 (9th Cir. 1992)……………………....14

Murray Energy Corp. v. FERC., 629 F.3d 231 (D.C. Cir. 2011)……………………………17, 18

Nat’l Comm. for the New River, Inc. v. FERC, 373 F.3d 1323 (D.C. Cir. 2004)…………….…..8

Nat’l Wildlife Fed’n v. Coleman, 529 F.2d 359 (5th Cir. 1976)………………………...………20

Nat. Res. Def. Council, Inc. v. Hodel, 865 F.2d 288 (D.C. Cir. 1988)…………………..23, 28, 29

Nat. Res. Def. Council, Inc. v. Morton, 458 F.2d 827 (D.C. Cir. 1972)…………………………25

N. Natural Gas Co. v. Fed. Power Comm’n, 399 F.2d 953, 973 (D.C.Cir.1968)………………..25

Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079 (D.C. Cir.

1973)……………………………………………………………………………………………..24

Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31 (D.C. Cir. 2015)…………………..15

Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991)……………………………………………14

Telecomm’s Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984)……………………10

Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66 (D.C. Cir. 2011)……………25

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Federal District Cases

Arizona Cattle Growers’ Ass’n v. Kempthorne, 534 F.Supp.2d 1013 (D.Ariz.2008)……...…... 19

Lone Rock Timber Co. v. U.S. Dept. of Interior, 842 F. Supp. 433 (D. Or. 1994)…………..…..14

Pub. Util. Dist. No. 1 of Snohomish Cty., Washington v. FERC, 270 F. Supp. 2d 1 (D.D.C.

2003)…………………………………………...………………………………………………...10

Rocky Mountain Farmers Union v. Goldstene, 719 F. Supp. 2d 1170 (E.D. Cal. 2010)…….….27

Wyoming Outdoor Council v. Bosworth 284 F. Supp. 2d 81 (D.D.C. 2003), case dismissed, No.

03-5302, 2004 WL 1345107 (D.C. Cir. June 15, 2004)…………………………………..…12, 13

Federal Statutes

5 U.S.C. § 701 (2012)……………………………………………………………………………..1

5 U.S.C. § 702 (2012)……………………………………………………………………………..1

5 U.S.C. § 703 (2012)……………………………………………………………………………..1

5 U.S.C. § 704 (2012)……………………………………………………………………………..1

5 U.S.C. § 705 (2012)……………………………………………………………………………..1

5 U.S.C. § 706 (2012)……..……..……………………………..…………………………..1, 8, 15

15 U.S.C. §717f (2012) …………………………………………………………………….…1, 20

15 U.S.C. §717r(a) (2012)……………….………………………………………………………..1

15 U.S.C. §717r(b) (2012)………………,………………………………………………………..1

16 U.S.C. §1531 (2012)……………………………………………………………….....10, 11, 15

16 U.S.C. §1532 (2012)…………………………………………………………..….10, 11, 15, 19

16 U.S.C. §1533 (2012)………………………………………………………………………….19

16 U.S.C. §1536 (2012)………………………………………………………………..…….11, 19

16 U.S.C. §1538 (2012)………………………………………………………………….………10

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28 U.S.C. §1331 (2012)………………………………………………………………….…....1, 19

28 U.S.C. § 2201 (2012)…………………………………………………………………………..1

28 U.S.C. § 2202 (2012)….……………………………………………………………………….1

42 U.S.C. § 4332 (2012).……………………………………………………………………20, 25

Federal Rules

40 C.F.R. § 1502.14 (2015)…………………………………………………………..….………25

40 C.F.R. § 1508.25 (2015)………………………………………………………….………20, 23

40 C.F.R. § 1508.7 (2015)……………………………………………………………..…… 20, 21

50 C.F.R. § 402.01 (2015)………………………………………………………….........10, 11, 19

50 C.F.R. § 402.12(2015)………………………………………………………………………..11

50 C.F.R. § 402.14(2015)……………………………………………………………………11, 19

50 C.F.R. § 402.15 (2015) ………………………………………………………………………17

50 C.F.R. § 402.16 (2015)……………………………………………………………….11, 12, 14

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Jurisdictional Statement

The Natural Gas Act (“NGA”) requires entities such as Mammoth Pipeline, LLC

(“Mammoth”) to obtain a Certificate of Public Necessity and Convenience (“Certificate”) from

the Federal Energy Regulatory Commission (“FERC”) before constructing or operating facilities

for the transportation of natural gas in interstate commerce. 15 U.S.C. § 717f(c)(1)(A) (2012).

Any party aggrieved by a FERC order granting a Certificate may seek rehearing within 30 days

of the order’s issuance. Id. § 717r(a). The NGA gives this Court jurisdiction to review FERC’s

granting of a Certificate after there has been an application and denial for rehearing, and review

is within 60 days of rehearing denial. Id. § 717r(b).

Wildlife Protection Council (“WPC”) presented the issues raised in this appeal in an

August 21, 2015 rehearing request, which was properly submitted within 30 days of the July 31,

2015 order granting Mammoth a Certificate. FERC denied the rehearing request and WPC

subsequently filed a petition for review of FERC’s final decision. WPC timely submitted the

issues raised to FERC, was denied rehearing, and timely petitioned this Court for review.

This Court has subject matter jurisdiction over this action because the issues presented

arise from federal questions under the Endangered Species Act (“ESA”) and the National

Environmental Protection Act (“NEPA”). 28 U.S.C. § 1331 (2012). This Court also has

jurisdiction over this action because the Administrative Procedures Act (“APA”) authorizes this

Court to provide judicial review of final agency actions. 5 U.S.C. §§ 702–706 (2012). This Court

can remedy FERC’s legal violations by declaratory relief under 28 U.S.C. § 2201, 28 U.S.C. §

2202, and 5 U.S.C. §§ 701–706. Therefore, WPC properly brought this action for judicial review

before the United States Court of Appeals for the District of Columbia Circuit.

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Statement of the Issues Presented

1- Whether FERC’s failure to reinitiate consultation with the U.S. Fish and Wildlife Service

(“FWS”) to take into consideration new information on the hemlock furry aphid’s (“Aphid”)

impact to the golden-throated cerulean warbler’s (“Warbler”) critical habitat under the ESA was

arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence or otherwise

not in accordance with law.

2- Whether FERC’s consideration of the economic impact of routing the Mammoth Pipeline

Project (“Mammoth Project”) to avoid the Endorean National Forest in its suggestions for

reasonable and prudent alternatives to the proposed route under the ESA was arbitrary,

capricious, an abuse of discretion, unsupported by substantial evidence or otherwise not in

accordance with law.

3- Whether FERC’s failure to include the Mitu Energy (“Mitu”) and NME Gas (“NME”)

pipeline projects in the cumulative impacts analysis for the Mammoth Project in FERC’s final

Environmental Impact Statement (“Mammoth FEIS”) under NEPA was arbitrary, capricious, an

abuse of discretion, unsupported by substantial evidence or otherwise not in accordance with

law.

4- Whether FERC’s failure to identify and assess all reasonable alternatives to the Mammoth

Project and consider combinations of low-carbon and renewable energy sources, including

energy efficiency, as an alternative to the Mammoth Project under the NEPA was arbitrary,

capricious, an abuse of discretion, unsupported by substantial evidence or otherwise not in

accordance with law.

Statement of the Case

This case appeals FERC’s decision to grant Mammoth a Certificate for the Mammoth

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Project. R.10 After holding an open season, Mammoth began the application process to receive a

Certificate from FERC in November 2012. R.7. In May 2013, FERC authorized pre-filing for the

Mammoth Project. R.1. In December 2013, FERC announced that it would prepare a draft

Environmental Impact Statement for the Mammoth Project (“Mammoth DEIS”). R.7. FERC

published the Mammoth DEIS in January 2015. R.7. FERC published the Mammoth FEIS in

May 2015, allowing 30 days for public comment. R.10. FERC granted the Certificate on July 31,

2015 and WPC submitted a request for a rehearing on August 21, 2015. R.10. FERC denied

WPC’s request. Docket No. CP15-234-000. WPC argues that FERC’s decision to grant

Mammoth the Certificate was arbitrary, capricious, an abuse of discretion, unsupported by

substantial evidence, or otherwise not in accordance with the law. R.10. WPC appeals. R.10.

Statement of the Facts

The Warbler was listed as endangered under the Endangered Species Act in 1997 and is

found solely within the Great Laurel Mountain Range. R.4. The greatest concentration of the

Warbler occurs within the Endorean National Forest in Vandalia, where there are approximately

1,500 out of only 1,800 remaining nesting locations. R.4. The Great Laurel Mountains are in the

Endorean National Forest and are the highest mountains in the eastern United States. R.4. This

territory is an ideal home for the Warbler because can only thrive in a cool and humid

environment. R.4. The Warbler needs expansive tracts of contiguous forest (at least 100 acres)

for breeding and raising their youth and any fragmentation of their habitat results in prompt

population decline. R.4, 9. The Endorean National Forest has the largest stands of the American

hemlock tree (“Hemlock”) and Hemlock seeds, the Warbler’s primary food source, because the

forest is in the most remote area with the fewest roads, and minimal logging and clearing. R.4. In

2004, the FWS found that Warblers were entirely dependent on Hemlock food sources and

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designated the Endorean National Forest as a critical habitat for the Warbler under the ESA. R.4.

Although the Hemlock range once covered most of the eastern United States, logging,

land clearing, and invasive species, such as the Aphid have greatly reduced the Hemlock’s range.

R.4. In 2014, the Aphid was identified in the northeastern corner of the Endorean National Forest

and in March 2015 a peer-review study published by the Association of American Arbor

Scientists (“Study”) found that the acceleration of the Aphid’s spread was because the Aphid’s

larvae are not dying during winter seasons due to unseasonably warm temperatures. R.4. The

Study found that the observed Aphid population acceleration would continue due to the

continued warming that results from climate change. R.4. The Study anticipates that the

acceleration of the Aphid would potentially decimate the Hemlock population over 20 years. R.4.

In January 2012, the State of Franklin enacted its Clean Energy Act (“CEA”). R.3. The

CEA has two objectives. R.3. First, the CEA sets a goal of increasing the percentage of

Franklin’s electric supply generated from alternative and renewable energy sources. R.3. The

CEA incentivized the development of zero- and low-carbon emission generation and created a

plan for Franklin to have a minimum of 25% alternative and renewable energy by the year 2030.

R.3. The CEA also required a reduction in greenhouse gas (“GHG”) emissions from electricity

generation by 30% relative to 2005 levels. R.3. The CEA was passed with an expectation that

Franklin’s coal-fired power plants would be retired, and with an anticipation there would soon be

federal requirements for GHG emission reduction. R.3.

WPC is a nonprofit membership organization founded in 1984 with approximately

450,000 members and online activists, known for its work protecting endangered species through

legal action and scientific petitions. R.8. WPC has members in every state R.10 n.3.

Mammoth has stated, and FERC has accepted, that the need for the Mammoth Project has

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arisen from the demands within the CEA for increasing low or zero-emission electricity

generation in Franklin. R.8. Mammoth proposed to accomplish the goals of the CEA through the

Mammoth Project, which would bring natural gas to Franklin by interstate pipeline. R.3. The

Mammoth Project involves the construction, operation, and maintenance of 493.4 miles of 42-

inch-diameter pipeline, three compressor stations, main line valves, pig launchers, receivers, and

communication towers. R.3. The project would be capable of transporting up to 1.1 billion cubic

feet of natural gas per day. R.3. The project’s estimated cost is $4.4 billion. R.3. In July 2012,

Mammoth held two open seasons to give future potential customers an opportunity to enter into a

nonbinding agreement to sign up for a portion of the pipeline capacity. R.3. By November 2012,

Mammoth had signed agreements for 70% of its capacity. R.3.

In November of 2012, Mammoth filed an application with FERC to receive a Certificate,

as is required to build an interstate natural gas pipeline. R.3,7. FERC authorized the application’s

pre-file process in May 2013. R.3. In December of 2013, FERC published a notice of intent to

prepare the Mammoth DEIS. R.7.This opened the scoping process for FERC to gather input from

the public and parties interested about the Mammoth Project. R.7.

FERC published the Mammoth DEIS in January of 2015. FERC’s stated objectives in

preparing the Mammoth DEIS were to: 1) identify and assess the potential impacts on the natural

environment that would result from the implementation of the proposed project; 2) describe and

evaluate reasonable alternatives to the proposed project that would avoid or minimize adverse

effects to the environment; 3) identify and recommend specific mitigation measures, as

necessary, to minimize on- and off-site environmental effects; and 4) encourage and facilitate

involvement by the public and interested agencies in the environmental review process. R.7.

As part of the Mammoth DEIS, FERC consulted with FWS, the U.S. Army Corps of

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Engineers, and the U.S. Forest Service. R.7. FERC initiated consultation with the FWS in July of

2014. R.9. FWS provided FERC technical information about the Warbler in its biological

opinion (“July 2014 BiOp”). R.9. The July 2014 BiOp included a survey prepared in May 2014

that found that up to 155 Warbler nesting pairs would be disturbed by the Mammoth Project if it

were to be built on the proposed route. R.9. Thus, FWS suggested a prudent and reasonable

alternative route to completely avoid entering or crossing the Endorean National Forest, which

would only require an 18.5% increase in costs. R.9. FERC chose to not evaluate the alternate

route suggested by the FWS, and simply deemed the alternate to be cost-prohibitive. R.9. FERC

also chose not to reinitiate consultation with the FWS concerning the new information about the

aggressive spread of the Aphid into the Great Laurel Mountain Range and the November 2014

discovery of the Aphid in the Warbler’s critical habitat. R.10. Information on the FWS-suggested

alternate route and the spread of the Aphid were excluded entirely from the Mammoth FEIS.

In the “Special Status Species” section of the Mammoth DEIS, FERC considered

alternative routes not suggested by the FWS. FERC acknowledged that the routes it considered

were likely to adversely harm the Warbler. R.9. Each of the considered routes would fragment

the Warbler’s critical habitat and displace individual birds R.9. Nevertheless, FERC

recommended that the proposed route be used and that minimal mitigation measures would

suffice to protect the Warbler. R.9.

When FERC considered alternatives to the Mammoth Project, it included a “no action”

alternative. R.8. FERC found that the no action option did not satisfy the stated objective of the

Mammoth Project. R.8. FERC considered other energy source alternatives individually, but

FERC did not contemplate any alternative that would consists of a combination of energy source

alternatives (“Combination Alternative”). R.8. FERC determined that others energy sources,

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each on their own, would not provide the same amount of energy that the Mammoth Project

would provide, and therefore dismissed them. R.8. FERC acknowledged that some alternatives

could be used that would not cross the Endorean National Forest and would not affect the

Warbler, yet FERC did not conduct any analysis or give any consideration to those options. R.8.

FERC reviewed select projects with potential cumulative impacts on resources within the

general area of the Mammoth Project, including four wind farms, a proposed 423-mile electric

power line that would run through Franklin nearly parallel to the Mammoth Project, and two

large residential developments being built in Spencer, twelve miles outside of Franklin. R.9.

FERC failed or neglected to incorporate the Mitu and NME pipeline projects in its

cumulative impacts analysis, which were both proposed to run parallel to the Mammoth Project.

R.9. The Mitu and NME projects were planned to transport natural gas from the same source and

to the same destination as the Mammoth Project. R.9. Mitu and NME requested pre-file

applications from FERC in May 2015, the same month that FERC published the 563-page

Mammoth FEIS in the Federal Register. R. 9–10. FERC granted Mammoth a Certificate on July

31, 2015, ruling that the public benefits of the project outweighed the adverse effects. R.10.

Summary of the Argument

Where FERC has not adhered to the procedural and substantive requirements of the ESA

and the procedural requirements of NEPA, it has acted arbitrarily and capriciously. Mammoth

proposed to construct a pipeline that would provide natural gas to Franklin. The pipeline is

expected to have negative and adverse impacts on an endangered species, as well as its critical

habitat. FERC granted a Certificate to allow Mammoth to construct the pipeline. FERC

consulted with the FWS as required by the ESA and prepared an EIS as required by NEPA.

However, FERC did not comply with the requirements of the ESA. First, FERC did not

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reinitiate consultation with the FWS when new information was made available of factors that

should have been considered, which would negatively impact the critical habitat of the

endangered species. Second, FERC erroneously considered economic impacts when determining

how many adverse impacts should be allowed to the endangered species and its critical habitat.

Also, FERC did not comply with the requirements of NEPA. First, FERC failed to

include two pipelines in its cumulative impacts analysis. Second, FERC failed to identify and

assess reasonable alternatives that should have been thoroughly considered.

By not adhering to the requirements of the ESA and NEPA, FERC acted arbitrarily and

capriciously. This Court’s remanding the challenged actions back to FERC to ensure that its

decisions are made in compliance with the procedural and substantive requirements of both the

ESA and NEPA is the appropriate redress Thus, WPC respectfully asks this Court to remand

FERC’s denial of a rehearing for the issuance of a Certificate to Mammoth.

Argument

A. The Court Applies the Arbitrary and Capricious Standard to Review FERC Actions Under ESA and NEPA.

This Court reviews federal agency actions under the ESA and NEPA ‘‘to ensure that the

agency has adequately considered and disclosed the environmental impact[s] of its actions and

that its decision is not arbitrary or capricious.’’ Delaware Riverkeeper Network v. FERC, 753

F.3d 1304, 1313 (D.C. Cir. 2014); Nat’l Comm. for the New River, Inc. v. FERC, 373 F.3d 1323,

1327 (D.C. Cir. 2004); see also Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97–98 (1983).

Under the APA, any reviewing court shall ‘‘hold unlawful and set aside agency action,

findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.’’ 5 U.S.C. § 706(2)(A) (2012); see Michigan Consol. Gas Co. v.

FERC, 883 F.2d 117, 120 (D.C.Cir.1989). Under the arbitrary and capricious standard of review,

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courts verify that an acting agency examined the “relevant data and articulate[d] a satisfactory

explanation for its action including a rational connection between the facts found and the choice

made.” Delaware Riverkeeper, 753 F.3d at 1313; see Bowen v. Am. Hosp. Ass'n, 476 U.S. 610,

626 (1986). In making its inquiry, the court considers whether an agency decision was based on

consideration of relevant factors and whether there was a clear error of judgment. Motor Vehicle

Mfr’s. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 30–31 (1983).

Agency actions must be set aside1 as arbitrary and capricious if they are not the product

of ‘‘reasoned decision-making.’’ Delaware Riverkeeper, 753 F.3d at 1313. Agency actions are

considered to be arbitrary and capricious if the agency: has relied on factors which Congress

has not intended it to consider; entirely failed to consider an important aspect of the problem;

offered an explanation for its decision that runs counter to evidence before the agency; or if the

decision is so implausible that it could not be ascribed to a difference in view or the product of

agency expertise. Id.; Motor Vehicle Ass’n, 463 U.S. at 43; Midcoast Interstate Transmission,

Inc. v. FERC, 198 F.3d 960, 967 (D.C. Cir. 2000).

In this brief, WPC demonstrates that FERC’s actions were arbitrary, capricious, an

abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with

the law when it: (1) failed to reinitiate consultation with the FWS after it acquired new

information that it had not previously considered; (2) unlawfully considered economic impacts

in its suggestions for reasonable and prudent alternatives under the ESA; (3) failed to include

the Mitu and NME pipeline projects in its cumulative impacts analysis under NEPA; and (4)

failed to identify and assess all reasonable alternatives to the Mammoth Project under the CEA.

1 See also County of L.A. v. Shalala, 192 F.3d 1005, 1021 (D.C.Cir.1999) (holding that when an agency fails to provide a reasoned explanation, or where the record belies the agency conclusion, the court must undo the agency action).

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The proper remedy2 for these harms is to remand the issues to FERC for additional

investigation and explanation. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985);

Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 655 (2007). WPC therefore

respectfully asks this Court to reverse and remand FERC’s denial of a rehearing for the issuance

of a Certificate to Mammoth.

I. FERC Violated the Endangered Species Act Because It Did Not Reinitiate Consultation with the Fish and Wildlife Service to Take into Consideration the New Information on the Aphid’s Impact to the Warbler’s Critical Habitat. a. FERC is Required to Consult with the FWS for the ESA Matters Pertaining to

the Warbler.

Congress enacted the ESA to provide a “means whereby the ecosystems upon which

endangered and threatened species depend may be conserved” and “a program for the

conservation of such endangered species.” 16 U.S.C. § 1531(b) (2012). Principal responsibility

for implementing the ESA has been delegated to the FWS. Id. § 1532(15); 50 C.F.R. § 402.01

(2016). Section 9 of the ESA makes it unlawful for any person to “take” an endangered species

without express authorization. 16 U.S.C. § 1538(a)(1)(B). “Take” includes any action that would

2 WPC asserts that this Court also has jurisdiction to issue a preliminary injunction against Intervenor, Mammoth to temporarily enjoin construction of the Mammoth Project until the issues of this action are resolved. See Telecomm’s Research & Action Ctr. v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984) (holding that where a statute commits review of agency action to the Court of Appeals, any suit seeking relief is subject to the review of the Court of Appeals). However, the record indicates that Mammoth will not be represented in this case for the purposes of briefs or oral argument. R.1 n.1. WPC can show that a temporary preliminary injunction is an appropriate remedy against Mammoth, and that WPC meets the 4-factor test this Court requires for the issuance of an injunction. Pub. Util. Dist. No. 1 of Snohomish Cty., Washington v. FERC, 270 F. Supp. 2d 1, 3 (D.D.C. 2003). However, WPC did not include the preliminary injunction argument in this brief because Mammoth will not be represented before this Court, and because WPC assumes that FERC will not choose to voluntarily argue against an injunction on Mammoth’s behalf. Therefore, WPC has submitted a motion for preliminary injunction against Mammoth to the appropriate U.S. District Courts in Vandalia, Spencer, and Franklin. In its motion, WPC requests that the district courts enjoin construction of the Mammoth Project and deny Mammoth all rights of eminent domain granted by FERC through the Certificate, in accordance with 15 U.S.C. § 717f(h), until the issues of this action have been resolved.

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“harass, harm ... wound, [or] kill,” a member of a listed species. Id. § 1532(19).

Section 7 of the ESA sets forth a detailed process that must be followed before agencies

take or approve actions that may affect a listed species. Id. § 1536. Any agency proposing an

action that is likely to adversely “affect listed species” must enter into formal consultation with

the FWS. 50 C.F.R. §§ 402.14(a), 402.01(b), 402.12(k). As part of formal consultation, the FWS

prepares a Biological Opinion (“BiOp”) which considers the current status of the species, the

environmental baseline, and the effects of the proposed action, and concludes “whether the

action, taken together with cumulative effects, is likely to jeopardize the continued existence of

listed species...” Id. § 402.14(g)(2)–(4).

b. The Plain Language of the ESA Requires That FERC Reinitiate Consultation With the Discovery of New Information.

FERC cannot ignore a clear, express requirement of federal law. When Congress speaks

directly to the issue at hand, “[t]he court...must give effect to the unambiguously expressed intent

of Congress.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Imc., 467 U.S. 837, 842–43

(1984). Reinitiation of formal consultation is required and shall be requested by the acting

Federal agency if new information reveals effects of the action that may affect listed species or

critical habitat in a manner or to an extent not previously considered. 50 C.F.R. § 402.16

(emphasis added); 16 U.S.C. § 1531. WPC asserts that this plain language of speaks for itself.

FERC incorporated the July 2014 BiOp into the “Special Status Species” section in the

Mammoth DEIS. R.9. Prior to July 2014, the Aphid had already been attacking the Hemlock for

several decades. R.4. However, it was not until November 2014 that the Aphid was identified in

the northeastern corner of the Endorean National Forest. Id. In light of this new information

concerning the Aphid, the Association of American Arbor Scientists’ Study was published in

March 2015. Id. The Study showed acceleration in the Aphid’s spread due to the warmer winters.

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Id. The decimating effects of the Aphid to the Hemlock was not discussed in the July 2014 BiOp,

and was thus not incorporated in the January 2015 Mammoth DEIS, nor the May 2015

Mammoth FEIS addressing the agency’s decision. R.9, 10. FERC’s refusal to reinitiate

consultation was arbitrary and capricious because: the discovery of aphids in the Endorean

National Forest qualifies as new information that was not previously considered; FERC was still

involved with the action when the new information was available; and ERC simply declined to

follow a requirement to reinitiate a formal consultation.

1. The Discovery of the Aphid’s Spread into the Endorean National Forest and the Potential Hemlock Decimation is New Information That Was Not Previously Considered.

The Ninth Circuit applied the plain meaning of the language in 50 C.F.R. § 402.16 when

it held holding that the regulation requires a federal agency to reinitiate consultation on a

proposed action if new information reveals effects of the action that may affect listed species or

critical habitat in a manner or to an extent not previously considered. Conservation Cong. v.

Finley, 774 F.3d 611, 619 (9th Cir. 2014).

In Wyoming Outdoor Council v. Bosworth, FWS listed the grizzly bear (Ursus arctos

horribilis) of the lower 48 states as a threatened species under the ESA since 1975. 284 F. Supp.

2d 81, 84-85 (D.D.C. 2003), case dismissed, No. 03-5302, 2004 WL 1345107 (D.C. Cir. June 15,

2004). There, a 1993 BiOp recognized and took into account the uncertainties of the size of the

grizzly population and the potential value of the habitat.” Id. at 95. Plaintiffs argued that the

1993 BiOp had uncertainties as to the size of the grizzly population in a specified area, which

were later replaced by certainty that the specified area was a grizzly bear “hot spot.” Id. at 93–94.

The court held that despite receipt of new information regarding importance of area as grizzly

bear habitat, the 1993 BiOp recognized and took into account uncertainties as to size of grizzly

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population and potential value of habitat, and FWS did not request reinitiation. Id. at 94–95.

This case is distinguishable from Wyoming on two points: presenting new information;

and information not previously considered. First, in the1993 BiOp in Wyoming recognized and

took into account the uncertainties as to the size of the grizzly population and the potential value

of the habitat. Id. at 95. Here, FERC’s DEIS reveals that the July 2014 BiOp considered the

Warbler’s need for large tracts of Hemlock forest habitat, the Warbler’s predominate remaining

species population living within the Endorean National Forest, and the Warbler’s location of

nesting pairs (that would be destroyed if the Mammoth Project was built on the proposed

pipeline routes). R.9. Although this information takes into account the size of the Warbler

population and the Warbler’s required habitat, the July 2014 BiOp makes no comment about the

uncertainties about the Warbler’s potentially vulnerable habitat. R.9. The July 2014 BiOp

neglects the future value of the habitat by not making any indication that the Warbler’s critical

habitat could be subject to danger, let alone the specifics of the Aphid, which could be expected

to potentially decimate the Hemlock population over the next 20 years. R.4, 9.

Second, the July 2014 BiOp states that the Warbler needs at least 100 acres of Hemlock

forest habitat and that 80% of the remaining Warbler population lives within the Endorean

National Forest. R.9. This information provides a more refined, necessary habitat than the

grizzlies habitat in Wyoming. In its initial listing of the grizzly, the FWS noted that “[t]he range

of the grizzly bear, which at one time was much of the western United States, is now confined to

isolated regions in Montana, Idaho and Wyoming. Wyoming Outdoor Council, 284 F. Supp. 2d

at 85. Although the habitat of the grizzlies is confined to Yellowstone, it is not because of their

reliance on a food source, like the Warblers and the Hemlock. R. 4.

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2. FERC Was Required to Reinitiate Consultation with the FWS Because FERC Has a Continued Involvement with the Mammoth Project.

ESA Section 7’s consultation obligations for an agency continue as long as the agency

retains “discretionary … involvement or control over the action.” 50 C.F.R. § 402.16. “The duty

to consult is ongoing, and formal consultation must be reinitiated in specified circumstances…”

Mount Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1445 n.6 (9th Cir. 1992). One such

circumstance is where “new information reveals effects of the action that may affect listed

species … in a manner or to an extent not previously3 considered.” 50 C.F.R. § 402.16(b).

In Lone Rock Timber Co. v. U.S. Dept. of Interior, the Bureau of Land Management

(“BLM”) had the duty to reinitiate consultation with the FWS because new information revealed

effects of the action that may have affect listed species or critical habitat to an extent not

previously considered. 842 F. Supp. 433, 440–41 (D. Or. 1994); see 50 C.F.R. § 402.16(b)). Two

years after the BLM sought formal consultation for timber permit issuance, a new area was listed

as critical habitat and a species was listed as threatened, both within BLM controlled areas. Lone

Rock Timber, 842 F. Supp. 433 at 438. The court held that the agency could not ignore the

information provided by the consulting agency merely because the opinion was late, and that any

continued agency action, in the face of reliable information that their action would adversely

impact protected species, would be arbitrary and capricious, and contrary to law4. Id. at 440–41

This present case is distinguishable from Lone Rock in that the Endorean National Forest

was listed as a critical habitat and the Warbler was listed as an endangered species prior to the

first BiOp. However, the intent of ESA does not change based upon when a species or area is

3 See also Sierra Club v. Yeutter, 926 F.2d 429, 432 (5th Cir. 1991) (“If new information becomes available pertaining to the harmful effects of previously approved agency action, the consultation process must be repeated with the USFWS.”). 4 See Hill v. Tennessee Valley Auth., 549 F.2d 1064, 1070 (6th Cir. 1977), aff'd, 437 U.S. 153 (1978).

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listed. The ESA intends that the benefit of the doubt should always be given to the species.

Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 40 (D.C. Cir. 2015) (citing Tennessee

Valley, 437 U.S. 153 (1978)); see 16 U.S.C. § 1531. Thus, it is proper for this Court to find that

the information discovered after the July 2014 BiOp would be classified as new with respect to

the Warbler. Congress intended that the burden be borne by the agency in producing a proper

BiOp, and not passed onto the species.

Furthermore, if an acting agency does not articulate an explanation establishing a rational

connection between the facts found and the choice made, the court should conclude that acting

agency’s failure to reinitiate formal consultation was arbitrary or capricious under the APA. 5

U.S.C. § 706; Bowen, 476 U.S. at 626. FERC has not offered any explanation for failing to

reinitiate consultation. This Court should find FERC’s lack of action and lack of explanation

arbitrary and capricious.

II. FERC Erred in Considering the Economic Impact of Routing the Proposed Pipeline to Avoid the Endorean National Forest in Its Suggestions for Reasonable and Prudent Alternatives to the Proposed Mammoth Pipeline Route. a. FERC’s Consideration of the Economic Impact Was Not in Accordance with

Congressional Intent or Presiding Common Law.

The Supreme Court has held that the plain intent of Congress in enacting the ESA was to

“halt and reverse the trend toward species extinction, whatever the cost.” Tennessee Valley Auth.

v. Hill, 437 U.S. 153, 184–85 (1978). This intent is reflected in every section of the ESA. Id.

The Court acknowledged that the value of an endangered species is “incalculable”. Id. at 178.

Acting agencies are specifically directed by the ESA to use “all methods and procedures which

are necessary” to preserve endangered species. Id; see also 16 U.S.C. §§ 1531(c), 1532(2). The

Court further held that Congress intended to give endangered species priority over the mission of

acting agencies. Tennessee Valley, 437 U.S. 153, at 184–85.

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In Tennessee Valley, a federally funded dam was under construction and nearly complete

when environment groups brought a suit to enjoin completion of the dam on the ground that the

dam would destroy the only critical habitat of the endangered snail darter fish. 437 U.S. at 158–

62. The dam was a project that was designed to stimulate community development and provided

heat and electricity to 20,000 homes. Id. at 157. The Court acknowledged that enjoining the

dam’s completion would result in at least $100 million in wasted funds. Id. at 166. The Court

affirmed the appellate court’s decision to enjoin the dam’s construction because the value of an

endangered species could not be balanced against economic estimates. Id. at 195.

Similar to the snail darter in Tennessee Valley, the Warbler has only one critical habitat,

which is the Endorean National Forest. However, unlike the dam in Tennessee Valley,

construction of the Mammoth Project need not be entirely enjoined to fulfill Congressional

intent. As currently approved, the Mammoth Project’s pipeline’s right-of-way would pass

through 47 miles of the Warbler’s critical habitat. After the first required consultation, FWS

suggested, as a reasonable alternative in the July 2014 BiOp, that FERC recommend a new route

that would still allow the Mammoth Project to be built which would avoid entering the Endorean

National Forest, and thus avoid taking of the Warbler. R.9. The new route would increase the

cost of the Mammoth Project from $4.4 billion to $5.4 billion. R.3, 9. Without further

explanation, FERC simply determined that the FWS-suggested route was cost prohibitive. R.9.

Like the Court in Tennessee Valley, it is appropriate for this Court to find that FERC’s

consideration of the economic impact directly opposes the Congressional intent of the ESA. This

Court should further find that interpretations of Congressional intent specifically require

agencies to halt and reverse actions that cause species extinction, whatever the cost. FERC

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clearly relied on economic impacts, which Congress did not intend it to consider, and it entirely

failed to consider another route that avoided the Warbler’s critical habitat altogether.

b. FERC Has Not Met Its Burden of Providing a Satisfactory Explanation for Deviating from the FWS 2014 BiOp Suggesting that FERC Recommend and Alternative Route to Avoid the Warbler’s Critical Habitat.

It is presupposed by the statutory scheme of the ESA that a biological opinion provided

during consultation with the FWS will play a central role in an acting agency’s decision-making

process. Bennett v. Spear, 520 U.S. 154, 169 (1997). A biological opinion is typically considered

fully adequate for an acting agency’s decision concerning ESA issues. Id.

The Supreme Court has held that federal agencies that choose to deviate from the

recommendations contained in a BiOp bear the burden of articulating in their administrative

record their reasons for disagreeing with the conclusions of the BiOp. Id. at 169–70. The acting

agency must provide a satisfactory explanation for its disagreement with the FWS, which the

Supreme Court ordinarily requires species and habitat investigations that are not within the

acting agency’s expertise. Id. If the agency’s inexpert explanation is wrong, the agency runs a

substantial risk. Id. Indeed, an acting agency is technically free to disregard the FWS’s BiOp and

proceed with its proposed action, but “it does so at its own peril.” Id. at 170. Furthermore, when

the FWS offers reasonable and prudent alternatives as part of the BiOp and the agency chooses

not to follow the recommendations, the agency must apply for an exemption to allow it to take5

the endangered species. Id. at 169–70; 50 C.F.R. § 402.15 (c). To meet its burden, FERC must

have examined the relevant data and articulated a satisfactory explanation for its action,

including a ‘rational connection between the facts found and the choice made’. Murray Energy

Corp. v. FERC., 629 F.3d 231, 235 (D.C. Cir. 2011).

5 See Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 708 (1995) (upholding interpretation of the term “take” to include significant habitat degradation).

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In Murray Energy, FERC granted a natural gas company a Certificate which authorized

the construction of a natural gas pipeline above a longwall coal mine. 629 F.3d at 234. The

mining company challenged FERC’s decision as arbitrary and capricious. Id. This Court found

that FERC offered a satisfactory explanation for its decision because FERC: demonstrated that

its experts has adequate qualifications to make the decision; used technical data provided by the

gas company to show that the pipeline plan was unsafe; showed that the approved pipeline

design had been adequately tested; and showed that the project plan bound the gas company to

continue with ongoing protective measures. Id. at, 237.

Unlike in Murray Energy, FERC did not provided a satisfactory explanation for its

actions in granting Mammoth a Certificate. FERC provided no explanation for its deviation from

the FWS recommendation, other than the cursory statement that the alternative route is ‘cost

prohibitive’ to the Mammoth pipeline project. R. 9. The project’s expected cost is $4.4 billion R.

3. The route that would avoid the critical habitat could increase the cost by $1 billion. R. 9.

FERC provides no explanation as to why $4.4 billion is not cost prohibitive, but $5.4 billion is

cost prohibitive. Furthermore, the record shows that Mammoth has signed agreements to sell

future customers for 70% of its total capacity of 1.1 billion cubic feet of natural of gas per day.

R. 3. This information might allow FERC to provide justification for determining that the

alternative route to be cost-prohibitive but FERC provided no such justification. FERC has

simply not provided any explanation that this Court would deem as satisfactory.

FERC considered eleven “Major Route Alternatives” to determine if they would avoid or

reduce the impacts on environmentally sensitive resources, but they simply chose not to consider

the one alternative suggested in the FWS 2014 BiOp. R. 8, 9. The only alternative that was

thoroughly evaluated by FERC also crossed the Warbler habitat in an area that was more densely

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populated than the proposed route. Id. FERC did not thoroughly consider any alternatives that

did not adversely affect the Warbler’s critical habitat. R. 9. FERC therefore arbitrarily ignored

the suggestions of the FWS and has not provided a satisfactory explanation that provides a

rational connection between the facts found and the choice made.

c. When Evaluating Appropriate Consideration of Economic Impact Under ESA, This Court Should Rely on the Expertise of FWS Rather Than FERC.

This Court has given an extreme degree of deference to an agency when it is evaluating

scientific data within its technical expertise. B&J Oil & Gas v. FERC, 353 F.3d 71, 75–76 (D.C.

Cir. 2004); see also City of Waukesha v. EPA, 320 F.3d 228, 247 (D.C.Cir.2003). Evaluation

under the ESA requires specific technical expertise that relates to endangered species because the

ESA is “the most comprehensive legislation for the preservation of endangered species ever

enacted by any nation.” Tennessee Valley, 437 U.S. at 180. The ESA was enacted to provide a

means whereby endangered species and the habitat on which they depend may be conserved. 16

U.S.C. § 1531(b); see also Cape Hatteras Access Pres. All. v. U.S. Dep't of Interior, 731 F. Supp.

2d 15, 22 (D.D.C. 2010).

The FWS is an agency with technical expertise in ESA matters, 16 U.S.C. § 1532, and

federal agencies such as FERC, must consult with the FWS “to insure that [its] action ... is not

likely to jeopardize the continued existence” of an endangered species. Id. § 1536(a)(2); 50

C.F.R. §§ 402.01(a), 402.14(a); B&J Oil & Gas, 353 F.3d at 76. If the FWS issues a BiOp

concluding that an agency’s action will likely result in adverse modification of critical habitat, it

is required set forth any reasonable and prudent alternatives to the action. 50 C.F.R. § 402.14; 16

U.S.C. § 1536(b)(3)(A); Cape Hatteras, 731 F. Supp. 2d at 22. The ESA specifically directs that

the FWS shall designate critical habitat on the basis of the best scientific data available and after

taking into consideration the economic impact of specifying any particular area as critical

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habitat. 16 U.S.C. § 1533(b)(2). Therefore, the FWS is the appropriate agency to receive judicial

discretion on consideration of economic impacts in matters that relate to the ESA, not FERC. See

Arizona Cattle Growers’ Ass’n v. Kempthorne, 534 F.Supp.2d 1013, 1032 (D.Ariz.2008).

While the ESA does not require federal agencies to either accept the BiOp of the FWS or

to replace the proposed action with one of the alternatives suggested, if an agency disregards a

BiOp and the agency action is challenged, Courts defer to the FWS because of its greater

expertise in the field. Nat’l Wildlife Fed’n v. Coleman, 529 F.2d 359, 371-72 (5th Cir. 1976).

This Court should find that FERC abused its discretion when it chose not to take into

consideration the suggestion made by FWS, which is an agency with expertise in ESA matters.

III. FERC Erred When It Issued Mammoth a Certificate and Denied a Rehearing Because It Arbitrarily and Capriciously Violated NEPA.

NEPA requires an EIS for proposed federal actions significantly affecting the

environment. 42 U.S.C. § 4332(2)(C)(i). As part of the EIS, the acting agency must consider: (1)

the full extent of the project’s cumulative impacts, 40 C.F.R. § 1508.7 (2016); and (2) the

impacts of any proposed similar actions, Id. § 1508.25(a)(1)–(3). The Supreme Court has held

that, under NEPA, ‘‘proposals for actions that will have cumulative or synergistic environmental

impact upon a region pending concurrently before an agency must be considered together. Only

through comprehensive consideration of pending proposals can the agency evaluate different

courses of action.’’ Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976).

a. FERC Violated NEPA When It Failed to Include the Mitu NME Projects in Its Cumulative Impacts Analysis.

FERC must fully satisfy the requirements of NEPA before it issues a Certificate for

natural gas pipeline construction. Delaware Riverkeeper Network, et al., v. FERC, 753 F.3d

1304, 1307 (D.C. Cir. 2014); 15 U.S.C.A. § 717f(c)(1)(A) (2015); 42 U.S.C.A. § 4332(2)(C)

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(2015). NEPA requires a complete analysis of any project’s cumulative effects, which have

defined by the Council on Environmental Quality (“CEQ”) as ‘‘the impact on the environment

which results from the incremental impact of the action when added to other past, present, and

reasonably foreseeable future actions regardless of what agency … or person undertakes such

other actions”. 40 C.F.R. § 1508.7. “Cumulative impacts can result from individually minor but

collectively significant actions taking place over a period of time.’’ Id.

This Court has held that ‘‘a meaningful cumulative impact analysis must identify: (1) the

area in which the effects of the proposed project will be felt; (2) the impacts that are expected in

that area from the proposed project; (3) other actions—past, present, and proposed, and

reasonably foreseeable— that have had or are expected to have impacts in the same area; (4) the

impacts or expected impacts from these other actions; and (5) the overall impact that can be

expected if the individual impacts are allowed to accumulate.’’ Delaware Riverkeeper, 753 F.3d

at 1319; see Grand Canyon Trust v. FAA, 290 F.3d 339, 345 (D.C. Cir.2002). Although the

standard of review is deferential, this Court has made it clear that conclusory statements of ‘no

impact’ alone do not fulfill an agency’s duty under NEPA.’’ Found. on Econ. Trends v. Heckler,

756 F.2d 143, 154 (D.C. Cir.1985). The agency must comply with principles of reasoned

decision-making, NEPA’s policy of public scrutiny, and CEQ’s regulations. Id.

In Delaware Riverkeeper, FERC was found to have acted in an arbitrary and capricious

manner. 753 F.3d at 1319–20. There, FERC granted a Certificate to an oil and gas pipeline

company, which proposed to build and interstate natural gas pipeline. Id. FERC did not include

the cumulative impacts of other pipelines that were concurrently proposed to FERC in its

analysis of the primary project. Id. at 1320. The other pipelines were entirely omitted from the

FERC’s cumulative impacts analysis. Id. This Court found that FERC acted arbitrarily and

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capriciously when it granted the Certificate because FERC has not properly completed the

cumulative impact analysis under NEPA. Id. Specifically, FERC had not addressed the ‘other

actions’, including other pipeline proposals that were reasonably foreseeable to have impacts in

the same area. Id. at 1319. Furthermore, the cumulative impacts analysis failed to discuss the

overall impact that could be expected if each individual impacts was allowed to accumulate. Id.

Additionally, in Delaware Riverkeeper, FERC’s NEPA documents stated in simple,

conclusory terms that the connected pipeline projects were not expected to “significantly

contribute to cumulative impacts” in the project area. Id. at 1319–20. This Court held that such a

cursory statement did not satisfy the cumulative impacts test required by NEPA. Id. The NEPA

documents at issue in Delaware Riverkeeper contained a few pages that discussed potential

cumulative impacts on groundwater, habitat, soils, and wildlife, but only with respect to the

proposed project. Id. at 1320. The court held that because FERC did not include the other

proposed pipelines, that it was “apparent that FERC did not draft [the] pages with any serious

consideration of the cumulative effects of the other project[s].” Id. The court further held that

FERC was obliged to assess cumulative impacts by analyzing the proposed project in

conjunction with the other projects. Id. at 1319–20.

As in Delaware Riverkeeper, FERC issued Mammoth a Certificate without including

other concurrently proposed projects, namely the Mitu and NME projects, in its cumulative

impacts analysis. R. 9-10. FERC published its Mammoth DEIS in January of 2015. R.7. In the

same month of the same year, Mitu and NME both proposed construction separate pipelines that

would run parallel to the Mammoth pipeline. R.9. In May of 2015, both Mitu and NME

requested FERC’s approval to pre-file for a Certificates. Id. On May 22, 2015, FERC published

the Mammoth FEIS. R.10. FERC issued its record of decision on July 31, 2015. Thus, like in

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Delaware Riverkeeper, FERC issued a Certificate based on incomplete NEPA documents that

specifically excluded proposed projects from the cumulative impacts analysis. In both cases,

FERC was aware of and concurrently reviewing the other projects. It was improper for

Mammoth to grant a Certificate without conducting a completed cumulative impacts analysis,

which is prescribed by NEPA. Thus, in accordance with past decisions of this Court, FERC acted

arbitrarily and capriciously in granting the Certificate.

b. FERC Impermissibly Segmented It’s NEPA Review.

Under NEPA, agencies cannot segment or exclude from an EIS any actions that are

“similar actions” to the project being evaluated. 40 C.F.R.§ 1508.25(a); Delaware Riverkeeper,

753 F.3d at 1308. As defined in regulations and by this Court, “similar actions” include any

actions, which when viewed with other reasonably foreseeable or proposed agency actions, have

similarities that provide a basis for evaluating their environmental consequences together, such

as common timing or geography. 40 C.F.R.§ 1508.25(a)(3); Delaware Riverkeeper, 753 F.3d at

1309 (emphasis added). FERC must analyze any similar actions in the same impact statement

when the best way to assess adequately the combined impacts of the similar actions, or

reasonable alternatives to such actions, is to treat them in a single impact statement. 40 C.F.R.§

1508.25(a)(3); Delaware Riverkeeper, 753 F.3d at 1309.

Courts have found that the justification for the rule against segmentation is “obvious: it

prevent[s] agencies from dividing one project into multiple individual actions each of which

individually has an insignificant environmental impact, but which collectively have a substantial

impact.” Nat. Res. Def. Council, Inc. v. Hodel, 865 F.2d 288, 297 (D.C. Cir. 1988). Thus, when

completing an EIS, agencies must consider similar actions. Delaware Riverkeeper, 753 F.3d at

1314; 40 C.F.R. § 1508.25(a); see Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1032

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(D.C. Cir. 2008). This Court has held that in preparing an EIS, FERC need not foresee the

unforeseeable, but that reasonable forecasting and speculation is implicit in NEPA. Delaware

Riverkeeper, 753 F.3d at 1310. But, this Court rejects any attempts by agencies to shirk their

responsibilities under NEPA by labeling any and all discussion of future environmental effects as

“crystal ball inquiry”. Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy Comm’n, 481 F.2d

1079, 1092 (D.C. Cir. 1973). While statutes do not demand that agencies forecast impacts in

ways that are ‘‘not meaningfully possible,’’ an agency must fulfill its duties to ‘‘the fullest extent

possible.’’ Delaware Riverkeeper, 753 F.3d at 1310.

In Delaware Riverkeeper, FERC acted arbitrarily and capriciously when it segmented its

NEPA review and when it did not adequately consider the combined environmental impacts of

related existing and reasonably foreseeable pipelines within the FERC’s jurisdiction. 753 F.3d at

1312. The proposed pipeline project’s NEPA documents identified ten existing or proposed

pipelines within fifty miles of the project area, including five that were connected or adjacent to

the project. Id. The NEPA documents provided absolutely no detailed information or analysis

relating to the additive environmental impacts of these past, present, and proposed actions. Id.

This Court found a clear nexus due to common timing and geography of the proposed

actions. Delaware Riverkeeper, 753 F.3d at 1318. While the proposed pipeline was under

construction, the others had been proposed, and FERC was aware of the physical, functional, and

financial links between the projects. Id. Additionally, FERC’s consideration of the proposed

projects overlapped with its consideration of the other projects by six months. Id. This Court

emphasized the importance it placed on geographical proximity and timing of projects. Id.

As in Delaware Riverkeeper, FERC failed to include other pipelines in its analysis that

would have similar impacts as the proposed project R.9–10. The Mammoth, Mitu and NME

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Projects have the same geographical start and end points. R.9 Indeed, the Mitu and NME projects

are mapped to run parallel to the Mammoth Project. R.9. Additionally, FERC’s review of the

three projects overlapped by five months. R.10. Thus, FERC failed its obligation to take into

account all three pipelines equally. The same lands would be disturbed by the projects, including

the Warbler and its habitat. These effects simply cannot be ignored and disregarded by FERC.

IV. FERC Failed to Identify and Assess All Reasonable Alternatives and Should Have Considered a Combination Alternative as an Alternative to the Mammoth Project.

a. FERC Must Identify and Asses All Reasonable Alternatives to Proposed Actions

Under NEPA. Before approving a project under NEPA, federal agencies must prepare a detailed

statement on the environmental impacts of the proposed action, a description of unavoidable

adverse environmental effects that will ensue if the proposed action is approved, and alternatives

to the proposed action. 42 U.S.C. § 4332(2)(C)(i)–(iii); City of Alexandria, Va. v. Slater, 198

F.3d 862, 866 (D.C. Cir. 1999). CEQ regulations require agencies to “rigorously explore and

objectively evaluate” the projected environmental impacts of all reasonable alternatives6 for

completing proposed actions. 40 C.F.R. § 1502.14; City of Alexandria 198 F.3d at 866; see Nat.

Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972). FERC did not assess all

reasonable alternatives because it did not consider a Combination Alternative.

1. Reasonable Alternatives Are Those That Meet the Identified and Defined Objectives of the Federal Action.

This Court has held that FERC must assess all reasonable alternatives to a proposed

project before it issues a Certificate. Minisink Residents for Envtl. Pres. & Safety v. FERC, 762

F.3d 97, 107 (D.C. Cir. 2014). FERC has a duty “to give proper consideration to logical

6 See also Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66, 74-75 (D.C. Cir. 2011) (stating that an EIS is supposed to inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts).

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alternatives which might serve the public interest better than any of the projects outlined in the

applications.” Minisink, 762 F.3d at 107 (quoting N. Natural Gas Co. v. Fed. Power Comm’n,

399 F.2d 953, 973 (D.C.Cir.1968)). This Court has also held that “reasonable alternatives” are

evaluated in light of the identified and defined objectives of the federal action. City of Alexandria

198 F.3d at 867; see also Minisink Residents for Envtl. Pres. & Safety v. FERC., 762 F.3d 97,

107 (D.C. Cir. 2014). An alternative may be excluded from consideration in an EIS only if it

would be reasonable for the agency to conclude that the alternative does not “bring about the

ends of the federal action.” City of Alexandria 198 F.3d at 867.

i. The Identified and Defined Objective of the Mammoth Project Was to Meet the Demands of Franklin’s CEA. In the “Project Purpose and Need” section of the Mammoth Project EIS, Mammoth stated

that the need for the Mammoth Project “arises from the state’s demand in its CEA for low or

zero emission electricity generation”. R.8. Also, in establishing the scope of the EIS for the

Mammoth Project, FERC states that one of its principle objectives in preparing the EIS was to

“describe and evaluate reasonable alternatives to the [Mammoth Project] that would avoid or

minimize adverse effects to the environment.” R.7. The plain language within the EIS shows that

FERC based the very need for the Mammoth Project on the emission goals created by the CEA.

FERC’s identified and defined objective in granting Mammoth a Certificate was to bring about

the ends demanded by the CEA. Therefore, under NEPA, FERC had an obligation to consider a

Combination Alternative as a reasonable alternative that could bring about the same ends.

ii. A Combination Alternative Is a Reasonable Alternative to the Mammoth Project.

The CEA requires Franklin to increase the percentage of its electricity generation “from

alternative and renewable sources” to a minimum of 25% by the year 2030. R.3 (emphasis

added). By this plain language, it is clear that the Franklin Legislature used, and intended to use

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percentages of combined alternative and renewable7 energy sources to determine if they had

reached their clean energy goals under the CEA. R.3. Combinations of low-carbon, renewables,

and energy efficiency have consistently been used by other states and recognized by courts as

methods to reach clean energy goals. See Rocky Mountain Farmers Union v. Goldstene, 719 F.

Supp. 2d 1170, 1175–77 (E.D. Cal. 2010) (describing California’s low-carbon fuel standards and

the use of renewable fuel facilities to help achieve a minimum 20% reduction in lifecycle GHG

emissions); Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733 F.3d 393, 401 (2d Cir. 2013)

(describing the Vermont Legislature's recognition of the need to develop renewable energy,

environmentally sustainable energy sources, and to create an “energy efficiency fund” to meet

Vermont’s clean energy objectives).

When FERC addressed energy sources in the “Alternatives” section of the Mammoth

EIS, it inexplicably considered other energy sources individually. R.8. FERC evaluated wind,

solar, nuclear, biomass, coal, oil, hydropower, geothermal, and increased energy efficiency/

conservation. Id. However, FERC determined that “each source on its own could not provide the

amount of energy that Mammoth would supply” and simply dismissed further consideration of

the energy sources. Id. FERC provided no further justification or explanation as to why each

source was considered alone or why a Combination Alternative was not considered.

In Minisink, FERC was found to have appropriately considered a reasonable alternative

in granting a Certificate because it “amply considered alternatives to the … [p]roject, devoting

especially thorough attention to the …[a]lternative favored by the [p]etitioners. 762 F.3d at 107.

In that case, FERC's analysis “unmistakably outlined its exploration” of the reasonable

alternative. Id. Here, FERC did not amply consider a Combination Alternative, but instead 7 The Franklin Legislature defined “renewable” and “alternative” energy to jointly include solar, thermal, photovoltaic, wind, biomass, hydro, geothermal, fuel cell technology, nuclear, advanced coal technologies, and high efficiency natural gas. R. 3. n.2.

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segmented other energy sources as solitary parts. WPC presumes that FERC segmented the

sources to avoid the possibility of showing that when they are combined, the sources may meet

the demands of the CEA, and thus decrease the need for the Mammoth Project.

The CEA does not demand that one single energy source be used to reach its clean energy

goals. To the contrary, the CEA uses a combined energy percentage to gauge Franklin’s success

in reaching its clean energy production goals. FERC readily accepted Mammoth’s claim that

compliance with the CEA was the objective for the Mammoth Project, but FERC gave no

consideration to a Combination Alternative, which could have possibly accomplished the same

objective with less adverse environmental impacts. Furthermore, FERC found that a ‘no action’

alternative to the Mammoth Project could be dismissed because it did not satisfy the stated

objective of the Mammoth Project. R.8. FERC was clearly aware that alternatives must be

considered if they could meet the project’s objective. FERC therefore acted in an arbitrary and

capricious manner when it did not include a Combination Alternative as a reasonable alternative

to the Mammoth Project.

b. FERC Was Obligated to Consider a Combination Alternative Because It Is an Energy Conservation Alternative.

FERC’s decision not to consider a Combination Alternative is contrary to the evolving

concept of energy conservation alternatives recognized by the Supreme Court. Vermont Yankee

Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 533 (1978). In Vermont

Yankee, the court made it clear that more, not less, consideration of energy efficiency would be

required as that alternative evolved over the years. Id. The Supreme Court noted that “[a]s we

gain experience on a case-by-case basis and hopefully, feasible energy conservation techniques

emerge, … licensing boards will have obligations to develop an adequate record.” Id. at 534.

This Court has rejected an agency decision to not consider partial energy conservation

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alternatives entirely because doing so would relieve the agency of its duty under NEPA to

consider alternatives altogether. Hodel, 865 F.2d at 295–96. This Court also held that the reason

for NEPA’s alternatives requirements is “not merely to force the agency to reconsider its

proposed action, but, … to inform Congress, other agencies, and the general public about the

environmental consequences of a certain action in order to spur all interested parties to rethink

the wisdom of the action.” Id. In Hodel, this Court found that the acting agency had properly

accounted for conservation alternatives. Id. There, the acting agency included in the final EIS a

“discussion of energy conservation policies in an Appendix entitled ‘Alternative Energy Sources

[which] list[ed] five major conservation options proposed as substitutes for energy development

projects … and mention[ed] the different ways in which conservation can be achieved under

those options.” Id. There, the inclusion of the conservation proposals and of the agency’s

comments satisfied the agency’s obligation to discuss energy conservation alternatives. Id.

Here, FERC did not include any discussion of conservation in the Mammoth DEIS.

Unlike in Hodel, FERC only lists energy efficient alternatives in the DEIS. R. 8-10. Also, FERC

did not include any information in either Mammoth EIS that provides information to specific

energy efficient programs that could curb the need implement energy development projects. Id.

Thus, FERC acted arbitrarily and capriciously when it failed to thoroughly consider energy

efficiency as an alternative to the Mammoth Pipeline Project.

Conclusion

For these reasons, FERC’s denial of a rehearing should be reversed. The issuance of the

Certificate should be remanded to FERC for a new decision that is procedurally and

substantively compliant with the ESA and NEPA.

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Certificate of Service

Pursuant to Official Rule IV, Team Members representing Wildlife Protection Council certify

that our Team emailed the brief (PDF version) to the West Virginia University Moot Court

Board in accordance with the Official Rules of the National Energy Moot Court Competition at

the West Virginia University College of Law. The brief was emailed on or before 1:00 p.m.

Eastern Time, February 1, 2016.

Respectfully submitted,

/s/ Team #24 Team No. 24

Team No. 24