Notice & Comment

D.C. Circuit Review – Reviewed: Pipelines and Deadlocks 

We have three administrative law opinions from the D.C. Circuit last week.  

The first two concern gas pipelines. In Center for Biological Diversity v. FERC, the Center for Biological Diversity and the Sierra Club petitioned the Court to review FERC’s decision approving a project to construct liquified natural gas facilities in Alaska’s North Slope. Petitioners argued that FERC’s environmental impact statement was inadequate and that FERC’s determination that the project was in the public interest was arbitrary. In an opinion by Judge Rao (joined by Judge Walker), the Court denied the petition in part and dismissed it to the extent that petitioners raised issues not exhaused before the agency. Among other things, the Court found that the agency permissibly rejected alternatives that failed to accomplish the project’s purpose of making better use of natural gas wells in the region.  

The agency did not fare so well in GPA Midstream Ass’n v. U.S. Dep’t of Transportation. In an opinion by Judge Ginsburg (joined by Judges Childs and Edwards), the Court vacated a rule requiring pipelines to install remote-controlled or automatic shut-off valves in some types of gas and hazardous liquid pipelines, but only as applied to “gathering” pipelines.  

“Gathering” pipelines collect raw material from a well and are distinguished from transmission pipelines that transport refined materials to their destinations. Because this is a Judge Ginsburg opinion, we have a diagram (courtesy of the agency) to help us with the distinction:

The Pipeline and Hazardous Materials Safety Administration prescribes safety standards for pipelines on behalf of Secretary of Transportation. Historically, it has regulated transmission pipelines more heavily than gathering pipelines because gathering pipelines typically traverse less populated areas and thus pose fewer safety hazards. In this case, the Court found that Administration failed to consider the costs and benefits of extending the shut-off valve requirement to gathering pipelines. 

For those who have followed the D.C. Circuit’s reflections on the question when a rule becomes final (covered here and here), there is a brief discussion of the issue in the GP Midstream opinion. But the Court finds that it is not necessary to resolve the question in this case.  

There is also an interesting (and brief!) remedies discussion that provides some food for thought on the interaction between severability and as-applied challenges: 

Finally, Campaign Legal Center v. FEC is another installment in the dispute over deadlock at the Federal Elections Commission, and the focus of this post. D.C. Circuit Review—Reviewed has covered it in at least three previous posts, including one by Judge Griffith, who unlike the rest of us also has an official opinion on the matter.  

The dispute in brief: FEC—with its three Democratic appointees and three Republican appointees—may initiate an investigation based on a citizen complaint only with a majority (and thus, bipartisan) vote. Unsurprisingly, the Commission deadlocks frequently. FEC has historically dismissed complaints on which it has deadlocked, with the “controlling” Commissioners providing a statement of reasons for voting against proceeding with the investigation. When FEC dismisses or fails to act on a complaint, the complainant may seek limited judicial review. Courts may determine that FEC’s action (or inaction) is “contrary to law.” But  exercises of prosecutorial discretion are unreviewable.  

All of this means that three (sometimes, fewer) Commissioners may make an unreviewable decision to stop FEC enforcement. The D.C. Circuit has explained that this is by design (for a good, brief explanation, see Judge Rao’s opinion from late last year). But some Commissioners disagree. In recent years, they have developed a strategy of refusing to close the files on deadlocked complaints—or even to notify the parties of their vote. What was once an unreviewable final decision appears to become reviewable inaction: the key that opens the doors for the complainant to press a citizen suit in federal court. 

The opinion (Judge Rogers, joined by Judges Henderson and Wilkins) does not disclose many details of this case, but according to the appellant Heritage Action, that is exactly what happened here. FEC deadlocked on Campaign Legal Center’s complaint against Heritage Action in 2021, with three Commissioners voting against enforcement on the basis of prosecutorial discretion. The other three Commissioners, however, voted against notifying the parties of the decision. Meanwhile, Campaign Legal Center had sued the agency in federal court for failing to act on its complaint.  FEC failed to appear, even after the court entered a default judgment. Eventually, the court found that FEC had unlawfully failed to act and authorized Campaign Legal Center to bring a citizen suit against Heritage Action. 

While matters were proceeding in Campaign Legal Center’s suit against FEC, Heritage Action filed a FOIA request, which uncovered the votes recounted above. Heritage Action then moved to intervene in Campaign Legal Center’s suit in order to seek reconsideration of or an appeal from the final judgment authorizing a citizen suit. The district court denied the motion as untimely, coming as it did after final judgment. Here is what it had to say (or not say) about the merits of the Commissioners’ deadlock strategy:  

The D.C. Circuit limited itself to the intervention decision, as to which it found no abuse of discretion. The opinion itself is of more interest on the topic of civil procedure. But the underlying deadlock issue is of great interest to those who study and practice administrative law, and the ongoing citizen suit may hold future lessons.

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