BACKGROUND I. Regulatory Scheme
ff he Natural Gas Act “confers on [FERC] exclusive jurisdiction over transportation and sale, as well as over the rates and facilities of natural gas companies engaged in transportation and sale” ofnatural gas in interstate commerce. Myersvz`lle Citz`zensfor a Ruml ley. v. FERC, 783 F.3d l3()l, 1315 (D.C. Cir. 2015) (citation and quotation marks
omitted). 'l`he Act lays out procedures for a party to obtain authorization to construct an
interstate natural gas pipeline See 15 U.S.C. § 717f. 'l`he keystone to that process is a so- called “certificate of public convenience and necessity.” ]d. § 717f(d). "l`he certificates authorize construction, establish the terms under which construction may proceed, and grant the project sponsor the power to condemn land along the approved route. [a’. §§ 717f(e), (h).[ Congress has vested FERC with the sole power to grant or deny such certificates [d.
FF,RC has issued regulations setting out an extensive application process for all certificates See 18 C.F.R. § 157.6. Applicants must submit technical, economic, and environmental information concerning the project. See z`d. § 157.6(b). And, as will become important in this case, while an application is pending, interested members of the public may intervene in the 1"`ERC proceeding and file comments See z`a’. § 157.10. lndeed, li`ERC has adopted procedures to allow members of the public to intervene even after the relevant deadlines have passed. See z`d. § 385.21'4.
After reviewing materials submitted by the applicant and interested third parties, liERC “will approve an application for a certificate only if the public benefits from the project outweigh any adverse effects.” Cerlz`fz`cation ofNew [nterstale Nat. Gas Pipeline Facilz`ties, 88 FERC il 61,227, 61,750 (1999). FERC has issued guidance as to how it
reaches such a determination First, FERC considers “whether the project can proceed
' FERC issues two forms of`ceitificates of public convenience and necessity: “blanket” certificates and “conditional” certificates See 18 C.F.R. § 157.203(a). Blanket certificates authorize the certificate- holder to engage in certain, defined activities in addition to the construction of the proposed pipeline. ]d.; see also id. §§ 157.208-157.218 (enumerating activities available to blanket ceitificate-holders). By contrast, conditional certificates require the applicant to return to FERC to secure permission for those activities
without subsidies . . . from [:| existing customers.” [cz’. p. 61, 745. lf` that initial condition is met, the Commission then considers the costs and benefits of the project, measured as an economic and as an environmental matter. Id. pp. 61,745-746. lfFERC concludes that the applicant has demonstrated its eligibility pursuant to these criteria, the Act directs that “a certificate shall be issued.” 15 U.S.C. § 717f(e).
The Natural Gas Act provides a review process for “aggrievcd” parties parties disappointed with the outcome of the certificate proceeding [d. § 717r. This process is open not only to the applicant itself, but also to interested parties that have intervened in the li`ERC proceedings ]d. An aggrieved party begins by seeking rehearing from the Commission, and “set[ting] forth specifically the ground or grounds upon which such application is based.” [d. § 717r(a). lf`rehearing is denied, the party “may obtain a review of |:the order denying rehearing] in the court of appeals ofthe United States for any circuit” where the natural-gas company is located or the D.C. Circuit by “'filing . . . a written petition.” [d. § 717r(b). The Act continues “[ujpon the filing of`such petition such court shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part.” Id. The Natural Gas Act bars the courts of appeals from considering any objection that was not “urged before [FERC] in the application for rehearing unless there is a reasonable ground for failure to do so.” [cz'.
Il. Procedural History
ln October 2015, Atlantic Coast Pipeline, LLC (“ACP”) and l\/lountain Valley
Pipeline LLC (“l\/lVP”) each submitted applications for blanket certificates of public
convenience and necessity. Am. Compl. 1111 40, 49. "l`hey did so in order to construct the
Atlantic Coast Pipeline, which will transport natural gas from northern West Virginia to North Carolina, and the l\/fountain Valley Pipeline, which will do the same between West Virginia and Virginia. Id. 1111 38, 46. Both applications were subject to a public comment period, during which time most of the named plaintiffs in this case intervened and filed comments See liERC Dkt. Nos. CPl5-554-OOO, CPl5-554-O()1 (ACP); CP16-1() (l\/l\/P). /~\fter nearly two years of review, FERC issued its final environmental impact statements on .fune 23, 2017 (MVP) and July 21, 2017 (ACP), which recommended the applications’ approval as to the certificate ofpublic convenience and necessity subject to certain terms and conditions See Order lssuing certificates Atlcml’l`c Coast Pipeline, LLC, 161 FERC 11 61,042, pp. 198-199 (2()17); Order lssuing certificates Mow/zmm Valley Pipeline, LLC, 161 FERC1161,043 (2()17).
On ()ctober 13, 2017, roughly two years after the applications were iiled, l»"ERC issued blanket certificates of public convenience and necessity to ACP and l\/lVP. ld. fn its certificate orders FERC found “that the benefits that the [ACP and l\/lVP projects] . . . will provide to the market outweigh any adverse effects on existing shippers other pipelines and their captive customers and on landowners and surrounding communities.” ]d. p. 4; M()umam Valley Pipeline, LLC, 161 FERC1161,()43,p. 28 (2017). The intervening parties ~ who comprise most of the plaintiffs in this case - asked FERC to rehear and stay its decision granting a certificate order to l\/lVP. See FERC Dkt. No. CPl6-l(), Submittal
No. 20171113-5375 (Nov. 13, 2()17).2 Within two weeks l\/fVP filed a condemnation
2 FERC subsequently affirmed the certificate orders See 163 FERC ii 61,197 (`lune 15, 2018).
action as authorized by the Certificate Order and 15 U.S.C. §7l7f(h). Mowzlcim Valley Pipeline LLC v. Easemerils to Coiistrucl, Operate, and Mal`ntal'/i a Natural Gas Pipeline, No. 7:17-CV-492-EKD (W.D. Va.).
Plaintif`fs filed this suit in early September 2017, while both ACP’s and l\/lVP’s applications were pending and before FERC had issued certificates of public convenience and necessity to those entities Compl. 1 [Dkt. # 1:|. Shortly thereafter, l\/fountain Valley Pipeline filed a l\/lotion to Dismiss the original Complaint. 1Dkt. # 1 11. Federal Defendants also filed a l\/lotion to Dismiss as to that original Complaint. 1Dkt. # 161.
ln November 2017, after FERC had issued the certificates plaintiffs filed an Amended Complaint. See Am. Compl. 1Dkt. # 191. "l"his Court’s scheduling order accepted plaintif`fs" Amended Complaint as timely filed, and afforded defendants the opportunity to file new motions to dismiss as to the Amended Complaint. See 11/9/2()17 l\/lin. ()rder. 'fhe Amended Complaint contains 17 counts raising both constitutional and statutory challenges Am. Compl. 1111 57-147. 'f`he Amended Complaint contains three broad categories of claims: (i) FERC’s certificate conferring eminent domain authority rested on inadequate findings by the Commission (Counts 3-7); (ii) FERC imposed improper conditions on the l\/[VP and ACP certificates (Counts 1-2, 10-12); (iii) FERC’s decision to issue certificates to MVP and ACP impinges on procedural rights grounded either in the U.S. Constitution or in the Natural Gas Act (8-9, 13~17).
'1"he Amended Complaint maintains that, ifplaintif'fs prevail on any one eount, they are entitled to a declaratory judgment that FERC’s actions are unlawful Plaintif'fs also
seek an injunction preventing ACP and l\/fVP “'from proceeding with development oftheir
respective projects or moving forward with eminent-domain actions” under 15 U.S.C. § 717f(h). See Am. Compl. 11 147(b). Federal Defendants filed a l\/lotion to Dismiss the Amended Complaint on December 21, 2017. [Dkt. # 2()1. l\/fountain Valley Pipeline filed a 1\/fotion to Dismiss Plaintiffs’ Amended Complaint |Dkt. # 211 on lanuary 3, 2018, and Atlantic Coast Pipeline did the same on that day, 1Dkt. # 22_1. On February 23, 2018, plaintiffs filed a motion to expedite, which this Court denied. See 3/1/2018 l\/lin. Order. fn recent months Federal Defendants and plaintiffs have each filed a supplemental notice of authority. 1_Dkt. ## 3(), 32]. ln addition, l\/lVP has advised the Court that plaintiffs Bold Alliance and Bold Education Fund filed a petition for review with our Circuit Court under the Natural Gas Act, 15 U.S.C. § 717r(b). See Petition for Review, BolclA[lz`a/ice, et al. v. FERC, No. 18-1216 (l).C. Cir.). That petition seeks review ofthe Certificate Order issued by FERC to l\/lVP (and the Commission’s Order on Rehearing, which upheld that Certificate Order), but not the one issued to ACP. [d. STANDARD OF REVIEW
li"ederal Rule of Civil Proeedure 12(b)(1) authorizes a party to move for dismissal for lack ofsubject-matterjurisdiction l'~"ed. R. Civ. P. l2(b)(1). Under Rule 12(b)(l), the plaintif`f, rather than defendant, “bears the burden of establishing the factual predicates of jurisdiction by a preponderance ofthe evidence.” Hum‘er v. FERC, 569 F. Supp. 2d 12, 15 (D.D.C. 2008). In considering a Rule 12(b)(l) motion, this Court “must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiffs.” Loga)i v. Dep’t off/elerans A}j”ai'rs, 357 F. Supp. 2d 149, 153 (D.D.C. 2004).
Nevertheless 1 “may give the plaintiff1:s’1 factual allegations closer scrutiny and may
consider materials outside the pleadings” when evaluating my ability to hear a claim. [ci.; see also Pearl v. Latham & Walkl`izs LLP, 985 F. Supp. 2d 72, 81 (D.D.C. 2013) (holding that a court may rely on materials that are appropriate forjudicial notice when evaluating a Rule l2(b)(l) motion, including public records). l\/foreover, 1 “need not . . . accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations"' Saa’()ws/ci` v. Bash, 293 F. Supp. 2d 15, 17 (D.D.C. 2003). “lf` the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” l""ed. R. Civ. P. l2(h)(3). ANALYSIS
Def`endants contend that plaintiffs have chosen the wrong venue for their claims 'l`he Natural Gas Act, defendants argue, vests the courts of appeals with “exclusive” jurisdiction for challenges of this kind. l\/loreover, defendants contend that plaintiffs have filed their complaint prematurely, running afoul of the distinct doctrines of ripeness and exhaustion. Plaintif`fs for their part, respond that (i) their claims are merely “collateral” to li`ERC’s process for certificate applications (ii) FERC lacks the authority and expertise to adjudicate their claims and (_iii) denyingjurisdiction would foreclose meaningful review. fn addition, plaintiffs assert that their claims are ripe and that the doctrine of exhaustion does not apply. For the reasons that follow, l conclude that this Court lacks subject matter jurisdiction over plaintiffs’ claims
At the start, the Natural Gas Act provides the sole avenue of review for parties aggrieved by FERC orders See 15 U.S.C. § 717r. As discussed above, the Act allows
parties to intervene, and provides a specific procedural path for review: seeking a rehearing
before li`l%lRC, followed by filing a petition for review with the appropriate court of appeals Ia’. § 717r(a), (b). Under the Act, the jurisdiction of our Court of Appeals “shall be exelusive.” ]a. § 717r(b). Congress could hardly have been more clear.
When Congress provides for exclusive review in a court of appeals that specific grant ofjurisdiction displaces the general federal question statute, 28 U.S.C. § 1331. See Ci`ty of Tacoma v. Taxpaye/”s ofTacoma, 357 U.S. 320, 336 1958). That is true for “all issues inhering in the controversy.” Id. '1"his doctrine, with its “expansive scope,” has commonsense roots Wi`[li`ams Nal. Gas C0. v. Cz`ty of()k]a. Ci`ly, 890 F.2d 255, 262 (10th Cir. 1989). As our Circuit Court put it, “1t1he policy behind having a special review procedure in the first place . . . disfavors bifurcating jurisdiction over various substantive grounds between district court and the court of appeals” because of “[t]he likelihood of duplication and inconsistency.” Ci'ty r)fRoc/iesz‘er v. Bo/ia', 603 1*`.2d 927, 936 (D.C. Cir. 1979). Courts have affirmed the exclusive nature of the FERC procedures time and again - including within the past year in the context of similar challenges See, e.g., U/”[)a)i v. FERC, No. 5:17-cv-1005 (JRA), slip op. at 5 (N.D. Ohio Dec. 19, 2017); Berkley v. Mozmla/,'n Valley Pipeline, LLC, No. 7:17-cv-00357 (EKD), slip op. at 1-3 (W.D. Va. Dec. 1 1, 2017).
The D.C. Circuit has however, recognized two narrow exceptions to otherwise exclusive FERC jurisdiction over challenges to the issuance ofeertificates. Unfortunately for plaintiffs neither applies here. The first exception applies when “denial of review in the District Court will truly foreclose all judicial review.” Telecommzm ’cns Researc/i &
Aclz`on Cl')". v. FCC, 750 F.2d 70, 78 (f).C. Cir. 1984). Because plaintiffs as affected
landowners are “aggrieved” parties for purposes of the Natural Gas Act’s circuit court review procedure, that exception does not apply here. FERC regulations afforded plaintiffs the opportunity to intervene and comment during the application process to seek rehearing, and, ultimately, to petition for review before a federal court of appeals The vast majority ofthe plaintiffs in this ease -- 46 out of55 - did intervene before FERC. Failure to intervene on the part of the other 9 plaintiffs does not change the fact that judicial review was available to them.
"l`he second exception to exclusive review involves “a constitutional challenge that
is exclusively directed to the source of putative agency authority.’ T[me Wamer Em’mt C()., L.P., v, FCC, 93 F.3d 957, 965 (D.C. Cir. 1996) (_per euriam) (emphasis added). As such, this exception applies to cases that “challenge[] the constitutionality of the agency’s enabling statute,” Hzmter, 569 F. Supp. 2d at 15, ncr to claims “raised . . . in a suit that is collateral to one challenging the validity of. . . agency action” or “a challenge to the manner in which the agency has exercised or . . . failed to exercise that authority.” Ti`me Warner, 9317.3d at 965.
Plaintiffs cannot find refuge in this second exception, either. '1"hat is so because plaintiffs’ constitutional theories go to FERC’s practice of adjudicating claims - not to its power to do so. See, e.g., Am. Compl. Count 4 (“FERC’s Practice of Granting Certificates Conditioned on Subsequent State or Federal Approvals#But Allowing for the Exercise of Eminent Domain¢Violates the Fifth Amendment’s Takings Clause”; z`a’. Count 9 (“FERC’s Granting of ‘Blanket Certificates’ Violates Plaintiffs’ Procedural-Due-Process
Rights Under the F_ifth Amendment”); id. Count 12 (“FERC’s Granting of Certificates to
Private, Nongovernmental Entities Without Ensuring the Entities Have Adequate Assets Sufficient to Guarantee f)ayment of .lust Compensation Violates the Fifth Amendment’s fl`akings Clause”). lndeed, plaintiffs plainly object to FERC’s issuance of the particular certificates issued to l\/lVP and ACP, meaning that this suit is not “collatcral to one challenging the validity of. . . agency action.” Tz`me Warne/”, 93 F.3d at 965.
Finally, plaintiff`s` claims of standing, and their prayer for relief, make clear that their constitutional theories are not “exclusively directed to the source of putative agency authority,” thereby depriving this Court ofjurisdiction. [a’.3 To the contrary, plaintiffs’ constitutional claims are deeply intertwined with allegations that FERC’s practices deviate from the provisions of the Natural Gas Act. See, e.g., Am. Compl. Count 1 (“FERC’s Pracli'ce ofGranli`iig Certificates Conditioned on Subsequent State or Federal Approvals_- But Allowing for the Exercise of liminent Domain----Exceeds FERC’s Authority Undcr the Natural Gas Act” (emphasis added)); see also id. Counts 2, 3, 5, 6, 7, 8, 11,. and 13.
CONCLUSION
Because Congress has elected by statute to confer sole jurisdiction on our Courts of
Appeals for petitions of this nature, l need not consider whether plaintiffs’ claims are ripe
or properly exhausted Nor can 1 proceed to the merits of plaintiff`s’ claims Federal
3 Nor cali Sections 717f(h) and 717u of the Natural Gas Act provide this Court with jurisdiction over plaintiffs’ claims Section 717f(h) furnishesjurisdiction only for “any holder of a certificate,” and plaintiffs are not holders ofcertificates. And Section 717u provides only l"orjurisdiction for claims arising under sources ofauthority other than the Natural Gas Act. As the Eighth Circuit put it, Section 717u “does not create a cause of action, but merely states that federal district courts have exclusive jurisdiction over cases that otherwise arise under federal law.” Great Lakes Gas Transmission Lla'. P’ship v. Essar Sleel Mi)m. LL(.', 843 F.3d 325, 329 (8th Cir. 2016). l-lere, because plaintiffs’ theories are anchored in pipeline proceedings and target a FERC decision, Section 717u has no relevance N() Gas Pipeline v. ]i`ER(,`, 756 l".3d 764, 769 (D.C. Cir. 2014).
ll
Defendants’ Motion to Dismiss [Dkt. # 201 is therefore GRANTED. The Motions to Dismiss the Amended Complaint filed by Mountain Valley _Pipeline [Dkt. # 211 and Atlantic Coast Pipeline [Dkt. # 221, and the Motions to Dismiss the original Complaint filed by Mountain Valley Pipeline [Dkt. # 111 and Federal Defendants [Dkt. # 161 are
DENIED as moot. A separate order consistent with this Opinion is attached hereto.
YJ»&¢W
RICHARD. L-E N United States District Judge