DC Circuit holds ground on denial of tribe's standing in Tennessee Gas case

Washington — The US Court of Appeals for the District of Columbia Circuit has declined to rehear a ruling that the Narragansett Tribe lacked standing to challenge federal orders on Tennessee Gas Pipeline's Connecticut Expansion Project.

The court in February concluded the tribe lacked standing because the pipeline was already built, and ceremonial landscapes lost, by the time the petition for review was filed.

The expansion involved building 13 miles of looping pipeline, as well as compressor modifications to add 72.1 MMcf/d of capacity to Northeast markets. The project entered service in November 2017.

Narragansett Tribe sought to intervene at the Federal Energy Regulatory Commission at the point in the process when the developer already had a certificate from FERC and was seeking authorization to start construction. The tribe argued that FERC had failed to meet consultation responsibilities under the National Historic Preservation Act, and filed a motion to intervene on April 6, 2017.

In petitioning for panel rehearing March 23, the tribe argued the court's finding was contrary to precedent of the DC Circuit and other circuit courts.

"It would be grossly unfair to deny judicial review to a petitioner objecting to an agency's refusal to grant party status on the basis that the petitioner lacks party status," the petition for rehearing said, citing precedent.

EX-PARTE RULE

Resolution of the issue is of national importance, the rehearing request said, because, under FERC's ex-parte rule, any tribe that asserts its constitutional right to government-to-government off-the-record consultations is not able to intervene. It added that FERC's ex-parte rule is to tribes what tolling orders are to landowners, "another Kafkaesque regime" intended, in this case, to keep tribes out of court.

And the rehearing request warned tribes would be caught in a "cannot consult and intervene catch-22." The court ruling has inadvertently given pipeline companies carte blanche to destroy historic resources, as long as they do so before a petition is filed, the tribe said.

The DC Circuit panel denied the petition for rehearing in a two-sentence order Wednesday, without further explanation.

MILLET OPINION

Of note, the judge who authored the original opinion denying the tribe's petition was Patricia Millett, the same judge who penned a scathing critique of FERC's tolling order practice for delaying final decisions on rehearing orders for months and thus keeping landowners in pipeline cases in legal limbo.

The opinion in the Narragansett Tribe case sided with the commission on the legal issues raised, but it documented, in detail, delays in FERC decisions on the tribe's motions to intervene and on its requests for rehearing.

"[T]he tribe's claim became moot while the matter was still pending before the commission and, as a result, the Narragansett Tribe lost standing to seek review in this court, unless it could identify a future injury," Millett wrote (Narragansett Indian Tribal Historic Preservation Office, v. FERC, 19-1009).