Delaware Riverkeeper Network v. FERC, No. 17-5084 (D.C. Cir. 2018)Annotate this Case
In 2015, PennEast Pipeline sought a certificate to build a natural gas pipeline running through Pennsylvania and New Jersey. Riverkeeper intervened to oppose the project. In 2016, while the Commission was still reviewing the proposal, Riverkeeper filed suit seeking declaratory relief against the Commission and its members, alleging that FERC's funding structure creates structural bias, in violation of the Due Process Clause of the Fifth Amendment, by incentivizing the Commission to approve new pipelines in order to secure additional sources for its future funding. Riverkeeper also challenged the Commission's use of tolling orders to satisfy its 30-day deadline for acting on rehearing applications. The district court dismissed the complaint for failure to state a claim.
The DC Circuit held that Riverkeeper properly filed this case in the district court; Riverkeeper established Article III standing; and Riverkeeper had a viable cause of action. On the merits, the court held that the Environmental Rights Amendment did not create federally protected liberty or property interests, much less ones that FERC could infringe; and regardless of whether any protected liberty or property interests were implicated, the Commission was not a structurally biased adjudicator, and its use of tolling orders was not facially unconstitutional.