KAYATTA, Circuit Judge.
In this unusual petition for review arising out of a state administrative proceeding, the petitioners themselves argue that we lack jurisdiction to hear their complaints about what has transpired to date before the state agency. Because the agency itself has not yet finally acted on the matter that is before it as is required to invoke our jurisdiction under 15 U.S.C. § 717r(d)(1), we agree and dismiss the petition.
The Natural Gas Act ("NGA") requires a natural gas company to obtain from the Federal Energy Regulatory Commission ("FERC") a certificate of public convenience and necessity before it may construct new natural gas transportation facilities or expand existing ones. 15 U.S.C. § 717f(c)(1)(A). FERC is responsible for coordinating all federal authorizations applicable to the process.
On July 31, 2014, Tennessee Gas Pipeline Company, LLC ("Tennessee Gas") applied to FERC for a certificate of public convenience and necessity, which FERC eventually issued in March 2016 subject to, among other things, filing of proof that Tennessee Gas has received "all applicable authorizations required under federal law (or evidence of waiver thereof)." In pursuit of one such authorization (or waiver thereof), Tennessee Gas submitted an application to the Massachusetts Department of Environmental Protection ("MassDEP")
The letter contained over forty conditions to the project's approval, including a condition — "Condition 15" — forbidding Tennessee Gas from conducting any "work subject to this Certification, including the cutting of trees," until "the expiration of the Appeal Period set forth below and any appeal proceedings that may result from an appeal." The conditional certification also described the appeal process, explaining that "[c]ertain persons shall have a right to request an adjudicatory hearing concerning certifications by the Department," including "[a]ny person aggrieved by this certification who has submitted written comments during the public comment period." In accordance with Massachusetts regulations on the subject, the conditional certification provided that any person who wished to appeal was required to submit a Notice of Claim for Adjudicatory Hearing within twenty-one days of the certification's issuance.
Petitioners took advantage of this provision, filing a Notice of Claim for Adjudicatory Hearing on July 20, 2016. In response, Tennessee Gas opposed Petitioners' request for a hearing and sought a stay of further administrative proceedings, claiming that once the agency had issued a conditional water quality certification, the state's involvement in the process was at an end, with any further review to be pursued through a petition to this court. Petitioners disagreed, as did MassDEP, which denied Tennessee Gas's request for a stay and moved forward, scheduling a final decision to be issued by April 3, 2017. In early August 2016, Tennessee Gas filed suit in the District of Massachusetts seeking to bar MassDEP from engaging in further review. Petitioners, in turn, hedged their bets. They filed the petition now before us in order to preserve some review of the June 29 conditional water quality certification in the event that Tennessee Gas was correct. At the same time, they asked us to reject their petition on the grounds that Tennessee Gas is not correct; that is to say, they claim that our review is premature until MassDEP completes its adjudicatory process.
We begin with the language of the statute that grants us the jurisdiction putatively invoked by this petition. We have exclusive jurisdiction "over any civil action for the review of an order or action of a... State administrative agency acting pursuant to Federal law [in ruling on an application, as pertinent here, for a water quality certification under 33 U.S.C. § 1341(a)(1)]." 15 U.S.C. § 717r(d)(1). In a literal sense, state agencies repeatedly take "action" in connection with applications for water quality certifications. They docket applications, review them, and express opinions about them. We see no reason, though, to think that Congress wanted us to exercise immediate review over such preliminary and numerous steps that state agencies may take in processing an application before they actually act in the more relevant and consequential sense of granting or denying it.
Pushing back on this common sense conclusion, Tennessee Gas points to the fact that § 717r(d)(1) employs the term "action,"
Such a negative inference might have interpretative force in dealing with some other subject matter.
It is also unclear that Congress's reference to FERC's internal review process in § 717r(b), coupled with the lack of a similar reference in § 717r(d)(1) to the internal review processes of state agencies, even raises the inference that Tennessee Gas claims. Rather, there is a more plausible explanation for Congress's decision to write the statute this way: unlike the FERC procedures described in § 717r(b), which are the same for any applicant proposing a project in any state or states, the state procedures giving rise to orders reviewable under § 717r(d)(1) may (and undoubtedly do) vary widely from jurisdiction to jurisdiction. Thus, whereas it is reasonable to interpret a reference to FERC's rehearing process as a signal that final agency action is required under § 717r(b), it does not make sense to draw the negative inference that the lack of a reference in § 717r(d)(1) to the variegated internal review mechanisms deployed by state agencies sends the opposite signal. Simply put, the text of § 717r(d)(1), on its own or read alongside § 717r(b), does not rebut the strong presumption that judicial review is available only following final agency action.
Further reinforcement for the strong presumption restricting review until an agency has taken final action resides in Congress's numerous efforts to prevent states from unreasonably delaying the performance of their reserved roles in connection with natural gas projects. In connection with any permit required by federal law, § 717r(d)(2) authorizes the United States Court of Appeals for the District of Columbia to issue injunctive relief when a state agency "fail[s] to act" on such a permit in accordance with a schedule established by FERC. Where the permit is a water quality certification required by 33 U.S.C. § 1341(a)(1), a state waives its right in connection with a FERC application if it "fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request."
Tennessee Gas contends that finding a final agency action requirement in § 717r(d)(1) nevertheless puts us at odds with the Second Circuit's decision in
Tennessee Gas also appears to argue that reading § 717r(d)(1) to permit judicial review of only a state agency's "final action" would be tantamount to imposing an exhaustion of administrative remedies requirement where one is not provided by the statute. In that vein, the company urges us to adopt the reasoning of other courts that have found exhaustion of administrative remedies unnecessary to trigger the exclusive and original jurisdiction of a United States Circuit Court of Appeals under § 717r(d)(1).
We disagree with Tennessee Gas's premise. Finding that a statute requires final agency action is different from finding that it requires exhaustion. "[T]he judicial doctrine of exhaustion of administrative remedies is conceptually distinct from the doctrine of finality": whereas exhaustion "refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate," finality "is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury."
We therefore conclude that there is ample reason to stick to the strong presumption restricting our review to final agency action of a type that is customarily subject to judicial review.
The foregoing brings us to Tennessee Gas's alternative, and principal, argument: that the June 29, 2016, letter from MassDEP constituted final agency action granting its application, albeit with conditions. Under this view, the continuing proceeding at MassDEP is in the nature of the type of appellate review that falls within the exclusive province of this court.
An agency action is "final" only where it "represents the culmination of the agency's decisionmaking process and conclusively determines the rights and obligations of the parties with respect to the matters at issue."
In form, there is something to Tennessee Gas's argument that the June 29 letter constituted final agency action. The MassDEP officials did issue a formal document that states "the Department grants a Water Quality Certification ... subject to the following conditions ... necessary to maintain water quality, to minimize impact ... and to ensure compliance with appropriate state law." The regulations (and the certification itself) refer to the adjudicatory hearing following an application for water quality certification as an "appeal."
The substance of the Massachusetts regulatory regime, however, shows the contrary: an initial letter granting a water quality certification subject to Condition 15, either before the twenty-one day window to request a hearing has lapsed or after a timely notice of claim is filed, is not a final agency action. Three aspects of the water quality certification that MassDEP issued in this case and the regulatory regime that gave rise to it lead us to this conclusion.
First, Massachusetts law makes clear that Tennessee Gas's application seeking a determination of its rights in the form of a water quality certification initiated a single, unitary proceeding, an essential part of which is the opportunity (of which petitioners have availed themselves) to have an adjudicatory hearing. Under Massachusetts law, "a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing" is an "[a]djudicatory proceeding." Mass. Gen. Laws ch. 30A, § 1(1). MassDEP regulations, in turn, provide that an adjudicatory proceeding "means a proceeding under [chapter 30A] that may culminate in an adjudicatory hearing and the Commissioner's issuance of a final decision." 310 Mass. Code Regs. § 1.01(c). Those same regulations also define such a hearing as one in which "parties may present evidence on issues of fact, and argument on issues of law and fact prior to the Commissioner's issuance of a final decision."
Second, the review to be provided in the adjudicatory hearing is a review of Tennessee Gas's application, rather than a review of a prior agency decision. MassDEP accords no deference to the preliminary findings included in the certification,
Third, the manner in which Massachusetts has chosen to structure its internal agency decision-making strikes us as hardly unusual or contrived. It allows for unopposed actions to proceed to finality without the time and expense of full-blown adjudicatory proceedings, while preserving the parties' rights to such proceedings when sought. With the taking of evidence and de novo consideration, it bears the hallmarks of decision-making by expert administrative agencies rather than those of judicial review. Its chief drawback, as demonstrated here, is its duration. Congress, though, has addressed the matter of delay directly,
There is, as yet, no order or action of MassDEP in connection with Tennessee Gas's application for a water quality certification that we may review under 15 U.S.C. § 717r(d)(1). We therefore