Summary
The D.C. Circuit reviewed Federal Energy Regulatory Commission orders declining to prevent a company from constructing and operating a natural gas pipeline in Puerto Rico while its licensing applications were pending. Petitioners argued the orders effectively authorized construction without satisfying statutory or environmental review requirements. The court held that the agency’s decision not to seek injunctive relief constituted an unreviewable exercise of enforcement discretion under the Administrative Procedure Act. Accordingly, the petition for review was denied.
Topics
Practice areas
Questions Presented
- Whether the FERC orders refusing to enforce Section 3 authorization constitute a reviewable action under the Administrative Procedure Act
- Whether the Natural Gas Act provides guidelines that rebut the presumption that agency decisions not to enforce are unreviewable
Holdings
- The orders reflect an unreviewable exercise of enforcement discretion and therefore the petition for review is denied.
- The NGA does not contain guidelines that rebut the presumption; thus FERC’s discretion remains unreviewable.
Key quotations
“The Administrative Procedure Act exempts from judicial review agency actions that are “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2).” (at 2)
“In Heckler v. Chaney, 470 U.S. 821 (1985), the Supreme Court held that agency decisions declining to take enforcement action presumptively fall within this provision.” (at 3)
Factual background
NFEnergía LLC operates an LNG import facility in San Juan, Puerto Rico. After the 2017 hurricanes and subsequent emergencies, the company built a 220‑foot pipeline to supply fuel to emergency generators. FERC declined to halt construction, stating it would not take enforcement action pending the pending Section 3 authorization proceeding.
Procedural history
The Federal Energy Regulatory Commission issued orders declining to take enforcement action against NFEnergía LLC’s construction and operation of a natural‑gas pipeline while a Section 3 authorization proceeding remained pending. Several environmental groups petitioned for review of those orders.