Notice & Comment

D.C. Circuit Review – Reviewed: Something For Everyone (Who Loves FERC, FIFRA, the FEC, Interior, and the EPA)

Last week was busy at the D.C. Circuit, with opinions on (i) FERC (of course!), (ii) FIFRA, (iii) election law and the FEC, (iv) the EPA, (v) federal land management, (vi) foreign relations and espousal of claims, and (vii) civil procedure and criminal procedure.


In Fore River Residents Against the Compressor Station v. FERC, neighbors of a natural gas compressor station petitioned for review of FERC orders that allowed Algonquin Gas Transmission to construct and operate the station. The D.C. Circuit held that the petitioners lacked constitutional standing to challenge one order because there was no relief left for the court to grant, as FERC had “already remedied each of the complaints raised.” The same problem made the petition moot. The problem with the other petition for review was statutory, not constitutional. This petition challenged not the first but the second denial of a request for rehearing of the Commission’s order permitting the compressor to begin operating. There was no statutory jurisdiction because the Natural Gas Act permits a petition for review of an “order,” which does not include a “disposition of the application for rehearing.” In other words, you can’t challenge a rehearing order by itself. There’s an exception to that rule for rehearing orders that substantively modify the result, but that exception does not apply when FERC’s rehearing order simply “tack[s] on some additional reasons” for reaching the same result.

In Citadel FNGE Ltd. v. FERC, a panel split 2-1 over various issues arising out of application of the Transmission Constraint Penalty Factor during a time of congestion in electricity transmission in Virginia. A transmission line was out in the Northern Neck Peninsula. Even so, FERC temporarily suspended application of the Penalty Factor after finding that it was unjust and unreasonable under the Federal Power Act. An energy trading firm petitioned for review, arguing that FERC acted arbitrarily and capriciously in suspending the Penalty Factor while the transmission line was out. Writing for the Court, and joined by Chief Judge Srinivasan, Judge Millett concluded that FERC reasonably found that the “Penalty Factor, as applied to the unique Northern Neck circumstances, could not work as designed because it increased costs without incentivizing supply or demand responses,” which in turn “increased costs for consumers without a commensurate benefit.” Judge Walker dissented and would have held that FERC had “moved the goalposts” by first reasoning that the Penalty Factor was not providing any benefit and then on rehearing concluding that the benefit did not justify the costs – an argument that the Court held was forfeited by the petitioner.


American Soybeans Ass’n v. Regan was a curious case about judicial review under FIFRA. The parties all agreed that review of an EPA order regulating a pesticide should be in the district court rather than directly in the D.C. Circuit. So why was the case in the court of appeals? According to Judge Rao, who concurred fully but wrote separately, parties commonly file “a protective petition for review in the court of appeals while simultaneously litigating in district court” because the D.C. Circuit’s precedent is unclear about what they should do. In American Soybeans, the Court held that public notice is necessary for an agency’s proceeding to be a “public hearing,” which in turn is necessary for direct court of appeals review under 7 U.S.C. 136n(b), a provision of FIFRA. Judge Rao argued that the en banc court should in an appropriate case clarify the D.C. Circuit’s precedent concerning judicial review under FIFRA.

Election Law and the FEC

Minor party candidates for president suffered a defeat in Stein v. FEC. The D.C. Circuit made short work of a constitutional and administrative law suit arising from the federal funding of presidential campaign expenses under the Presidential Primary Matching Payment Account Act. Jill Stein, the Green Party’s 2016 presidential candidate, challenged the FEC’s determination that her campaign owed the federal government $175,272, a figure that she argued was based upon a statutory standard that unconstitutionally discriminates against candidates from minor parties. But the statutory scheme, the court held, “easily survives review” under Buckley v. Valeo‘s standard for equal protection challenges to public funding for presidential campaigns: “If Congress could permissibly deny all public funding for that campaign based on the lack of widespread support for the Green Party, then Congress could also take the less restrictive step of offering Stein funding as a primary candidate that was less generous than the funding provided to primary candidates of major parties.” The FEC, moreover, was not arbitrary in finding that Stein forfeited an argument based on her winding down costs.


EPA does not always meet it deadlines. Indeed, as the court emphasized in Wynnewood Refining Company, LLC v. EPA, the EPA misses its deadlines often enough that there’s a “typical, approved form of mitigation” to protect regulated parties. In this case, the EPA failed to publish renewable fuel standards on time and provided an extension for regulated parties to make compliance filings. Fuel refineries challenged the terms of that extension as not being generous enough and as violating the Clean Air Act. The D.C. Circuit denied their petitions for review. It held that the Clean Air Act does not require the EPA to provide “a minimum of 13 months’ compliance lead time, nor does it require compliance intervals of at least 12 months.” Rather, all that’s required when the EPA misses an annual deadline for renewable fuel standards is that the EPA “reasonably adjust the . . . compliance schedule as appropriate to mitigate the harm caused by EPA’s delay and to ensure that the requirements of the Program are met.” The Court went on to hold that the EPA had acted reasonably in setting the extension’s specific compliance lead times and compliance intervals, though it took “no position on whether EPA has reasonably mitigated the harm borne by obligated parties due to its delayed issuance of the 2020-2022 standards,” an issue raised by separate challenges to the EPA’s action. Judge Randolph concurred in the judgment and would have held that the refineries lacked standing because they had not shown that the extension had injured them in fact.

Federal Land Management

American Forest Resource Council v. United States involved various challenges to federal land management in Oregon, including a challenge to an expansion of the boundaries of a national monument and challenges to management of forests and timber sales. The plaintiffs won on summary judgment in the district court. The D.C. Circuit reversed this judgment. As to the monument challenge, the Court concluded that the relevant statutes, including the O & C Act upon which the challenge was founded, provided the executive with discretion to expand the monument. The O & C Act also permitted the challenged resource management plans, which struck a balance between conservation and logging that was within the Secretary of the Interior’s discretion. Finally, the challenge related to timber sales was a broad programmatic attack rather than a judicially cognizable challenge to an identifiable agency action: the plaintiffs “complain[ed] not that the Secretary failed to take a specific action but rather that she failed to carry out the O & C Act’s general directives.” Such a challenge should be addressed to the political branches, the Court concluded.

Foreign Relations and Espousal of Claims

The D.C. Circuit decided two cases involving foreign relations and espousal claims. In Mark v. Republic of the Sudan, the Court held that the 2020 Sudan Claims Resolution Act’s jurisdiction-stripping provision was constitutional. The Foreign Sovereign Immunities Act contains a terrorism exception to foreign sovereign immunity. The Sudan Claims Resolution Act provides that Sudan “shall not be subject” to the FSIA’s terrorism exception among others, while preserving September 11th-related claims against Sudan. The plaintiffs’ terrorism-related case was not about the September 11th attacks. They argued that the Sudan Claims Resolution Act’s jurisdiction-stripping provision was unconstitutional. In Patchak v. Zinke, a recent case that came through the D.C. Circuit, the Supreme Court rejected a separation-of-powers challenge to a jurisdiction-stripping provision in a statute resolving a dispute about Indian lands. The plaintiffs here, by contrast, focused upon an equal protection challenge, arguing that Congress had arbitrarily distinguished between them and September 11th plaintiffs. This distinction, the court of appeals held, was rational because the September 11th claims arose from attacks on U.S. soil and had been pending for decades, unlike the claims resolved by the Sudan Claims Resolution Act. The plaintiffs also made a fundamental rights equal protection argument that the Act discriminated in impairing their constitutional right to access the courts. But the D.C. Circuit held that legislative restoration of foreign sovereign immunity does not violate the right to file a suit seeking redress.

In Schieber v. United States, the D.C. Circuit held that the executive branch’s decision to deny compensation from a Holocaust deportation claims fund was committed to agency discretion by law. The fund was created to compensate the victims of the Vichy government’s deportation of almost 76,000 Jews to Nazi concentration camps. Plaintiffs whose claims were denied sued the APA. The D.C. Circuit first held that their claims did not present a political question: “Disputes involving foreign relations often raise political questions, but not always.” The plaintiffs did not, however, have a cause of action under the APA because disbursement of the compensation fund was “committed to agency discretion by law” within the meaning of Section 701(a)(2). Parsing the underlying agreement between France and the United States as well as the relevant appropriations statute, the court concluded, “try as the plaintiffs might to characterize their claims as arising solely under the APA, the only possible source of substantive law for their claims is the Agreement itself, which bars judicial review expressly.”

Civil Procedure and Criminal Procedure

Harris v. Medical Transp. Mgmt., Inc. involved a putative class action and collective action to enforce the Fair Labor Standards Act. The D.C. Circuit remanded on the question of issue class certification under Rule 23(c)(4) and declined pendent appellate jurisdiction on the question of FLSA collective action status.

United States v. Wilson rejected an appeal from the denial of a federal inmate’s motion for compassionate release. The D.C. Circuit joined every other court of appeals that has considered the issue in holding that Section 3582(c)(1)(A) of the First Step Act of 2018 is a nonjurisdictional claims-processing rule.


Finally, the D.C. Circuit issued sealed opinions.

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