WILKINS, Circuit Judge:
Given the choice, almost no one would want natural gas infrastructure built on their block. "Build it elsewhere," most would say. The sentiment is understandable. But given our nation's increasing demand for natural gas (and other alternative energy sources), it is an inescapable fact that such facilities must be built somewhere. Decades ago, Congress decided to vest the Federal Energy Regulatory Commission with responsibility for overseeing the construction and expansion of interstate natural gas facilities. And in carrying out that charge, sometimes the Commission is faced with tough judgment calls as to where those facilities can and should be sited. These petitions present one such example.
In July 2012, the Commission approved a proposal for the construction of a natural gas compressor station in the Town of Minisink, New York. Many local residents, hoping to thwart that result, banded together to fight the compressor station's development. They formed a group called "Minisink Residents for Environmental Preservation and Safety" ("MREPS") and mounted a vigorous, but ultimately unsuccessful, campaign opposing the project. Undeterred, MREPS and several of its individual members now petition for our
We begin with a quick overview of the regulatory framework, before turning to the particulars of these petitions.
Congress enacted the Natural Gas Act, ch. 556, 52 Stat. 821 (1938) (codified as amended at 15 U.S.C. §§ 717-717z), with the principal aim of "encourag[ing] the orderly development of plentiful supplies of ... natural gas at reasonable prices," NAACP v. Fed. Power Comm'n, 425 U.S. 662, 669-70, 96 S.Ct. 1806, 48 L.Ed.2d 284 (1976), and "protect[ing] consumers against exploitation at the hands of natural gas companies," Fed. Power Comm'n v. Hope Natural Gas Co., 320 U.S. 591, 610, 64 S.Ct. 281, 88 L.Ed. 333 (1944). Along with those main objectives, there are also several "`subsidiary purposes'" behind the NGA's passage, "includ[ing] `conservation, environmental, and antitrust' issues." Pub. Utils. Comm'n of Cal. v. FERC, 900 F.2d 269, 281 (D.C.Cir.1990) (quoting NAACP, 425 U.S. at 670 & n. 6, 96 S.Ct. 1806).
The Act vests FERC with broad authority to regulate the transportation and sale of natural gas in interstate commerce. 15 U.S.C. §§ 717b, 717c; see also Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 301, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988) ("FERC exercises authority over the rates and facilities of natural gas companies used in [interstate] transportation and sale."). To achieve this objective, Congress equipped the Commission with a variety of regulatory tools, one of which captures the focus of our review today.
Under Section 7(c) of the Act, before an applicant can construct or extend an interstate facility for the transportation of natural gas, it must obtain a "certificate of public convenience and necessity" from the Commission. 15 U.S.C. § 717f(c)(1)(A); Dominion Transmission, Inc. v. Summers, 723 F.3d 238, 240 (D.C.Cir.2013). The statute provides that a certificate "shall be issued to any qualified applicant" upon a finding that "the applicant is able and willing properly to do the acts and to perform the service proposed ... and that the proposed service" and "construction... is or will be required by the present or future public convenience and necessity." 15 U.S.C. § 717f(e). FERC may, in issuing such a certificate, attach "such reasonable terms and conditions as the public convenience and necessity may require." Id.; Murray Energy Corp. v. FERC, 629 F.3d 231, 234 (D.C.Cir.2011).
The Commission has issued a policy statement outlining the criteria it considers in reviewing such certificate applications. Certification of New Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227 (Sept. 15, 1999), clarified, 90 FERC ¶ 61,128 (Feb. 9, 2000), further clarified, 92 FERC ¶ 61,094 (July 28, 2000) ("Certificate Policy Statement"). The Commission will first confirm "whether the project can proceed without subsidies from the existing [pipeline's] customers." Id., 88 FERC ¶ 61,227, at 61,745. Then, it will "balanc[e] the public benefits against the adverse effects of the project." Id., 90
In conjunction with the certificating process, the Commission must also complete an environmental review of the proposed project, as mandated by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370h. E.g., Midcoast Interstate Transmission, Inc. v. FERC, 198 F.3d 960, 967 (D.C.Cir.2000). Simply stated, the Commission's NEPA obligation requires that it "`identify the reasonable alternatives to the contemplated action' and `look hard at the environmental effects of [its] decision.'" Id. (quoting Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368, 374 (D.C.Cir.1999)) (alterations in original).
For years, Millennium Pipeline Company ("Millennium") has owned and operated a natural gas pipeline system extending across much of New York's southern border. In July 2011, seeking to expand its service capacity, Millennium applied to the Commission for a certificate of public convenience and necessity that would allow for the construction and operation of a natural gas compressor station along its existing pipeline. Joint Appendix ("J.A.") 304-19. The proposed site for the project was located in the Town of Minisink, New York.
As explained in its application to FERC, the aim of Millennium's project was twofold. First, the new station would allow Millennium to increase natural gas deliveries to its eastern interconnection by about 225,000 additional dekatherms per day. Second, the compressor would enable bidirectional gas flow on an existing segment of Millennium's pipeline. J.A. 305. The project's footprint, as proposed by Millennium, would consist of: (a) two 6,130-horsepower natural gas-fired compressor units, to be housed in a newly built structure; (b) an additional 1,090 feet of pipe connecting the compressor station to the existing pipeline; (c) and several ancillary facilities, including a new mainline valve, an access driveway, a station control/auxiliary building, intake and exhaust silencers, and a filter-separator with a liquids tank. The compressor station was to be sited on a small part of a much larger, 73.4-acre parcel — a parcel acquired and owned by Millennium. See J.A. 305-07. We refer to Millennium's proposal as the "Minisink Project."
Consistent with agency regulations, notice of the proposed Minisink Project was published in the Federal Register. See 76 Fed.Reg. 46,786 (Aug. 3, 2011). Around the same time, the Commission issued a "Notice of Intent to Prepare an Environmental Assessment," which was sent to a range of interested stakeholders, including
Most significantly for our purposes, several residents urged Millennium and the Commission to pursue a nearby alternative site for the compressor station — what came to be known as the "Wagoner Alternative." Under the Wagoner Alternative, Millennium would construct a smaller, 5,100-horsepower compressor station directly adjacent to its existing Wagoner Meter Station, a site located along the pipeline about seven miles northwest of Minisink. J.A. 10-11. This alternative, its proponents insisted, was far better suited for the project, in large part because it was less residentially dense than the site proposed in Minisink. See, e.g., J.A. 347-50. But it came with a catch: Its implementation would require the replacement of a 7-mile segment of pipe along the pipeline — a segment the parties call the "Neversink Segment" due to its crossing of the Neversink River; according to Millennium, no such upgrade would be required by the Minisink Project. See J.A. 390-91. Reacting to commenters who were pushing the Wagoner Alternative, FERC sent notice to landowners within the vicinity of the Wagoner Meter Station site and along the Neversink Segment, inviting their input and comments on the concept. J.A. 372-74. The Commission incorporated the feedback it received into its review of Millennium's proposal.
FERC released its Environmental Assessment ("EA") for the Minisink Project several months later. See J.A. 428-97. Along with its detailed evaluation of the project's likely environmental impacts — on water resources, vegetation and wildlife, air quality and noise, and more — the EA also analyzed several alternatives to Millennium's proposal, including an in-depth comparison between the Minisink Project and the Wagoner Alternative. J.A. 474-89. The EA did identify some positive environmental upshots associated with the Wagoner Alternative, see J.A. 484-89, but, on balance, the assessment found that the Minisink Project was environmentally preferable, due principally to the negative environmental consequences that would flow from an upgrade of the Neversink Segment, J.A. 489 ("[T]he greater environmental issues and landowner impacts of replacing the Neversink Segment cause us to conclude that the Wagoner Alternative does not provide a significant environmental advantage over the proposed project."). Overall, the EA concluded that, so long as Millennium implemented certain mitigation measures, the Minisink Project was expected to have no significant environmental impact. J.A. 490-94.
After receiving and reviewing a slew of comments concerning the EA, FERC ruled on Millennium's application in July 2012. By a 3-2 majority, the Commission voted to issue a certificate of public convenience and necessity to Millennium, allowing the Minisink Project to move forward. Millennium Pipeline Co., L.L.C., Order Issuing Certificate, 140 FERC ¶ 61,045 (July 17, 2012) ("Certificate Order") (reprinted at J.A. 2-50).
The Commission began its analysis by applying the criteria set forth in its Certificate Policy Statement, first finding the threshold factor satisfied — that the project would not require any subsidization from
The Commission undertook an extensive environmental analysis in its order, leaning heavily on the results of the EA. With respect to the Wagoner Alternative, in particular, the Commission explained as follows:
Certificate Order, ¶¶ 26-27. More broadly, the Commission also addressed a variety of other comments touching on environmental and landowner-related issues. At the end of the day, FERC adopted the EA's findings and concluded that, so long as Millennium adhered to the parameters outlined in its application and complied with certain environmental mitigation measures, the Minisink Project was expected to have no significant environmental impact. Id. ¶ 83.
The Commission's order also resolved a few procedural matters that had been raised. First, the Commission denied a request for a full-blown evidentiary hearing for the Minisink Project, concluding that the issues at stake could be adequately addressed on the written record. The Commission also denied a request to stay the proceedings due to a resident's pending Freedom of Information Act (FOIA) request for documents from the Commission (generally seeking certain hydraulic analyses and systems models that Millennium submitted to FERC during the application process). Id. ¶¶ 84-87.
As noted, the Commission's determination was not unanimous; the approval of Millennium's application drew two dissenting votes. At bottom, both dissenters — Chairman Wellinghoff and Commissioner LaFleur — explained that, in their eyes, the Wagoner Alternative was a preferable alternative to the Minisink Project, and that the Commission was wrong to conclude otherwise. See J.A. 41-47. In addition, Commissioner Clark issued a separate concurrence, highlighting his view that, even if one truly thought the Wagoner Alternative wrought lesser environmental impacts than the Minisink Project, so long as Minisink was still considered "an acceptable site that produces minimal adverse impacts," it should still be approved because FERC need not limit its approval to sites with "the minimum impact." J.A. 48 (second emphasis in original).
Following the Commission's approval, MREPS and others sought rehearing, and the Commission denied those requests through another thorough order. Millennium Pipeline Co., L.L.C., Order Denying and Dismissing Requests for Rehearing,
In January 2013, Minisink resident Michael Mojica filed a separate request for rehearing with FERC, focusing on (1) the Commission's refusal to reopen the record to consider Mr. Kuprewicz's study, and (2) Mr. Mojica's claimed inability to timely obtain information he believed necessary to oppose Millennium's application (essentially the documents pursued via the aforementioned FOIA request). The Commission, joined this time by Chairman Wellinghoff and Commissioner LaFleur, unanimously denied the rehearing request. Millennium Pipeline Co, L.L.C., Order Denying Rehearing, 142 FERC ¶ 61,077 (Jan. 31, 2013) ("Second Reh'g Order") (reprinted at J.A. 99-106).
Meanwhile, MREPS commenced proceedings before this Court. In December 2012, MREPS and some of its members filed a petition seeking review of the Commission's Certificate Order and Rehearing Order (Case No. 12-1481). Then, after his individual rehearing request was denied by FERC, Mr. Mojica separately petitioned for our review (Case No. 13-1018).
While the briefing in these appeals unfolded, Millennium completed construction of the Minisink Project and placed the compressor station into use in June 2013.
Petitioners seek review of a final order of the Commission, which means we have jurisdiction under 15 U.S.C. § 717r(b). E.g., Murray Energy Corp., 629 F.3d at 235; Fla. Gas Transmission Co., 604 F.3d at 639.
We review the Commission's orders, including those approving certificate applications, under the familiar arbitrary
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As a threshold matter, and even though neither FERC nor Millennium contests our power to entertain these petitions, we have independently assured ourselves that we are presented with a justiciable controversy. While the Minisink Project is now finished and functional, the petitions under review are not moot because Petitioners, through their written submissions to this Court and to the Commission, assert that the compressor's operation continues to harm their aesthetic, health, and property interests. See Moreau v. FERC, 982 F.2d 556, 566 n. 4 (D.C.Cir.1993). For much the same reasons, we are satisfied that Petitioners have suffered injuries sufficient for Article III standing. Id. at 565. With this much established, we turn to the merits of Petitioners' arguments.
In urging us to upend FERC's approval of the Minisink Project, Petitioners mount several lines of attack. Chief among them is their argument that the Commission failed to afford due consideration to the Wagoner Alternative, which Petitioners insist was undeniably superior to the Minisink Project — in their eyes, "economically, environmentally, and operationally" superior. See Pet'rs' Br. at 6. Specifically, Petitioners claim that this alleged failure both violated the Commission's obligations under Section 7 of the NGA, and represented a misapplication of the Commission's own Certificate Policy Statement. We disagree.
For one, FERC's Certificate Order unmistakably outlines the Commission's exploration of the Wagoner Alternative as an alternate possibility for Millennium's compressor station. See Certificate Order, ¶ 26 ("Numerous comments received during scoping also requested that the Commission evaluate alternatives to the proposed action.... The EA evaluated several system and aboveground site alternatives, and thoroughly compared the Wagoner Alternative to Millennium's proposed Minisink Compressor Station."). In keeping with the recommendations set out in the EA, however, the Commission concluded that the more significant environmental impacts associated with the Wagoner Alternative — mostly due to improvement of the Neversink Segment — rendered that option less preferable than the proposed Minisink Project. Id. ¶ 27 (summarizing some of the perceived environmental downsides to the Wagoner Alternative).
Furthermore, Petitioners seem to overlook the fact that, once the Wagoner Alternative surfaced, the Commission took the additional (and, from what we understand, relatively unusual) step of issuing a supplemental notice before completing its Environmental Assessment. Therein, the Commission specifically flagged its consideration of the Wagoner Alternative, inviting feedback and input from nearby residents and other potentially impacted parties. See J.A. 372-74; J.A. 373 ("The Commission wants to ensure that all potentially
In arguing to the contrary, Petitioners marshal only one meaningful theory in their favor. They claim that the Commission's analysis was flawed because Millennium either planned or needed to upgrade the Neversink Segment all along. In other words, according to Petitioners, even if Millennium moved forward with the Minisink Project (and not the Wagoner Alternative), it still had plans to replace the Neversink Segment in the very near future. So the Commission's decision to account for the environmental impacts of a Neversink upgrade only in connection with the Wagoner Alternative and not the Minisink Project, Petitioners tell us, was unreasonable and misguided. E.g., Pet'rs' Br. at 32 ("Had the Commission compared a Minisink/Neversink project to a Wagoner/Neversink upgrade, the Wagoner alternative would have emerged as the superior choice."). We reject their premise.
This argument effectively hinges on an ambiguous reference in one PowerPoint slide that Petitioners uncovered through an internet search in the midst of the agency proceedings — a document Petitioners generously refer to as the "Currie Report."
First, in City of Pittsburgh, it was clear and unmistakable that the pipeline intended to expand service in the future. See id. at 751 ("That Texas Eastern would soon move to expand its gas deliveries was apparent throughout the [Commission's] proceeding."); id. at 752 ("The record amply shows Texas Eastern's intention to apply for authority to expand its capacity and its sales."). Here, on the other hand, the Commission examined the record — including the so-called "Currie Report" — and found no concrete indication that Millennium intended, then or in the future, to upgrade the Neversink Segment. So the evidence of "future expansion" is a far cry from what we were presented with in City of Pittsburgh. Second, and perhaps more fundamentally, the shortcoming we took issue with in City of Pittsburgh was the Commission's refusal to examine the effects of future expansion altogether; the hearing examiner would not permit any questioning or inquiry into the supplier's plans for expansion, nor would the examiner consider several company memoranda that supposedly revealed such plans. Id. at 750-52. Here, in stark contrast, FERC unquestionably did consider Petitioners' theory that Millennium planned (or needed) to upgrade the Neversink Segment. See Certificate Order, ¶¶ 65, 68; Reh'g Order, ¶¶ 25, 32-33, 47, 73 & n. 41. It just disagreed with their position that the prospect of such a step was sufficiently certain to require its environmental effects be taken into account in connection with the Minisink Project. Given this, we cannot say that the Commission "closed its eyes" to the issue of "future expansion" — here, the
Given the foregoing, we have no basis to second-guess the Commission's determination that Millennium had no firm plans to upgrade the Neversink Segment in the wake of the Minisink Project. Petitioners also press this argument with a slightly different gloss, however. They argue that even if Millennium was not planning to replace the Neversink Segment, circumstances would soon require such a step nonetheless. Absent such an upgrade, Petitioners assert, a "bottleneck" caused by the smaller-diameter pipe on the Neversink Segment would preclude Millennium's pipeline from safely handling the volume, pressure, and speed that would be generated by the Minisink Project. (For the most part, this theory relies on the aforementioned study prepared by Mr. Kuprewicz.) We remain unmoved. The Commission considered this argument, too, and based on its assessment of the evidence, it again disagreed with Petitioners on the facts. FERC found no evidence that the Minisink Project would necessitate, as a structural or safety matter, an upgrade of the Neversink Segment. See Certificate Order, ¶ 68 ("Staff independently evaluated the hydraulic feasibility of the Minisink Compressor Station and completed an engineering analysis of Millennium's pipeline system.... [T]here is nothing in the record to suggest that the operation of the Minisink Compressor Station will compromise the safety of the Neversink Segment."); see also Reh'g Order, ¶¶ 75-80 (summarizing "flaws" in Mr. Kuprewicz's various suppositions, as viewed by FERC). As we explain shortly, the Commission's decision not to reopen the record to consider Mr. Kuprewicz's report was not an abuse of discretion, and Petitioners provide no other meaningful basis for concluding that FERC's factual determinations regarding the pipeline's structural integrity were unsupported by substantial evidence. We thus find no basis to upset the Commission's finding on this point either.
In our view, then, FERC reasonably concluded that the Wagoner Alternative would require replacement of the Neversink Segment, while the same was not plainly true of the Minisink Project. And with that factual determination in hand, it comes as no great shock that the Commission did not believe the Wagoner Alternative a better fit for the proposed project. On this point, some historical context is in order. More than a decade before the Minisink Project was proposed, Millennium had sought approval from FERC to construct a replacement pipeline for the original Neversink Segment. Initially, the Commission approved that proposal subject to certain conditions. Millennium Pipeline Co., L.P., Interim Order, 97 FERC ¶ 61,292, at 62,356 (Dec. 19, 2001). But due to the extreme difficulty Millennium encountered trying to satisfy those conditions — including a host of environmental snags — it opted instead to rely on the existing 7.1-mile-long segment of pipe acquired from a competitor (Columbia
In sum, as we have stated before, FERC "enjoys broad discretion to invoke its expertise in balancing competing interests and drawing administrative lines." Am. Gas Ass'n, 593 F.3d at 19 (citing ExxonMobil Gas Mktg. Co., 297 F.3d at 1085); see also Columbia Gas Transmission Corp. v. FERC, 750 F.2d 105, 112 (D.C.Cir. 1984) ("[A]s an expert agency, the Commission is vested with wide discretion to balance competing equities against the backdrop of the public interest[.]"). Notwithstanding Petitioners' pleas to the contrary, we conclude that the Commission's consideration of the Wagoner Alternative falls within the bounds of that discretion.
Along with their weighty reliance on the Wagoner Alternative, Petitioners make several other arguments against the reasonableness of the Commission's analysis. We treat each argument in turn, finding none persuasive.
Petitioners claim that the Commission failed to give the environmental impacts of the Minisink Project the "hard look" NEPA requires. We conclude otherwise.
NEPA's "hard look" doctrine is designed "to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Nat'l Comm. for the New River, 373 F.3d at 1327. NEPA is a procedural statute; it "`does not mandate particular results, but simply prescribes the necessary process.'" Midcoast Interstate Transmission,
Petitioners claim to eschew a flyspecking approach here, arguing instead that the Commission's analysis is laden with "gaping holes." Pet'rs' Br. at 41. They point to three. In our view, though, all fall decidedly more into the "flyspecking" camp than anything more.
First, Petitioners contend that the Commission erred in failing to undertake a more fulsome cost-benefit analysis of the Minisink Project as compared with the Wagoner Alternative. This argument essentially piggybacks off their overall Wagoner Alternative theory, and, in that sense, we reject it for the reasons already stated. In our view, the Commission reasonably assessed the Wagoner Alternative, particularly with respect to its environmental implications, as most concerns NEPA. See Found. on Econ. Trends v. Heckler, 756 F.2d 143, 147 (D.C.Cir.1985) ("NEPA's dual mission is ... to generate federal attention to environmental concerns and to reveal that federal consideration for public scrutiny.") (emphasis added). Otherwise, to the extent Petitioners contend that the Commission should have focused more generally on the monetary costs and benefits of the respective proposals, we disagree that NEPA requires such an approach, particularly where only an environmental assessment, rather than an environment impact statement, is involved. See Webster v. U.S. Dep't of Agric., 685 F.3d 411, 430 (4th Cir.2012) ("The agency does not," under NEPA, "need to display the weighing of the merits and drawbacks of the alternatives in a monetary cost-benefit analysis."); Communities Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 687 (D.C.Cir.2004) ("[I]t is undisputed that the FAA was not required to undertake a formal cost-benefit analysis as part of the [environmental impact statement].").
Second, Petitioners argue that the Commission failed to examine the Minisink Project's impact on property values. But as the Commission rightly rejoins, the EA clearly addressed this issue. J.A. 457-58. It recognized there may be some adverse impacts on surrounding property values due to the compressor station. On balance, though, the EA concluded that "the recommended building design and landscaping plans would eventually minimize the visual impact from the station on the surrounding residential properties and would not significantly reduce property values or resale values." J.A. 458. The Commission's order echoes this general assessment. Certificate Order, ¶ 70 ("[W]e believe that the visual and noise mitigation measures recommended in the EA and included as conditions in this order, will mitigate the potential for decreases in property values."). Though we can see how Petitioners may disagree with this takeaway, their disagreement does not mean that FERC failed to consider the issue altogether, as they suggest.
Third, Petitioners claim that the Commission failed to assess cumulative and future impacts. They accuse FERC of ignoring two issues in particular: (1) Millennium's planned development of a second compressor station on the pipeline upstream from Minisink (what came to be the "Hancock Project"), and (2) the potential construction of a lateral pipeline from the Minisink compressor to a proposed
Petitioners also assert that the Commission's approval of the Minisink Project contravenes its own siting guidelines. We can quickly dispatch these arguments.
Among its NEPA-implementing regulations, FERC has promulgated "[s]iting and maintenance requirements" for the construction and upkeep of facilities. 18 C.F.R. § 380.15. Petitioners think that the Minisink Project contravenes three separate provisions of that regulation. We think not. We first agree with
This leaves only § 380.15(g) (formerly § 380.15(f)), which applies to the "[c]onstruction of aboveground facilities." On this point, Petitioners claim that the Minisink site is not "unobtrusive," but, in fleshing out that contention, they argue simply that the Wagoner Alternative would have been less so. We remain unconvinced by that approach. And otherwise, we agree with the Commission that it implemented appropriate mitigation measures to reduce the site's potential obtrusiveness. See Reh'g Order, ¶ 50 (summarizing Millennium's vegetation plans and noise mitigation requirements to reduce obtrusiveness); id. at ¶¶ 57-59 (outlining Commission's approval of building design and Millennium's agreement with Town of Minisink concerning landscaping and screening plan for site). Particularly in view of the deference owed FERC's interpretation of its own regulations, see City of Oconto Falls, Wis. v. FERC, 204 F.3d 1154, 1162 (D.C.Cir. 2000), we reject Petitioners' argument that the Minisink Project violates the siting guidelines.
As a final offensive, Petitioners attribute several procedural errors to the Commission's handling of Millennium's application for the Minisink Project. We take these arguments in turn, accepting none.
First, Petitioners declare that the Commission improperly refused to hold an evidentiary hearing on Millennium's application. "FERC's choice whether to hold an evidentiary hearing is generally discretionary." Blumenthal v. FERC, 613 F.3d 1142, 1144 (D.C.Cir.2010). "In general, FERC must hold an evidentiary hearing only when a genuine issue of material fact exists, and even then, FERC need not conduct such a hearing if [the disputed issues] may be adequately resolved on the written record." Cajun Elec. Power Coop., Inc. v. FERC, 28 F.3d 173, 177 (D.C.Cir.1994) (internal citations and quotation marks omitted) (alteration in original). We review the Commission's denial of a hearing request for abuse of discretion. Woolen Mill Assocs. v. FERC, 917 F.2d 589, 592 (D.C.Cir.1990). Petitioners assert that a hearing would have resolved "several key factual disputes," but when push comes to shove, they point to only one — "the question of Millennium's intentions regarding the Neversink upgrade." Pet'rs' Br. at 53. Of course, the
Second, Petitioners complain that their due process rights were violated because the Commission failed to timely provide them with certain documentation during the proceedings — namely, particular hydraulic studies and engineering analyses that Millennium provided to FERC as part of its application. Petitioners concede, however, that MREPS and some of its individual members obtained these documents before the deadline to file for rehearing (indeed at least one petitioner who requested this information in March 2012 received access to it at least two months before petitions for rehearing were due). Oral Arg. Recording at 38:41-39:08; see also Reh'g Order, ¶¶ 70-71. There is no dispute, then, that Petitioners had the chance to make meaningful use of this information in connection with their petitions for rehearing. Under our precedent, this fact neutralizes any constitutional claim under the Due Process Clause. See Blumenthal, 613 F.3d at 1145-46; see also Jepsen v. FERC, 420 Fed.Appx. 1, 2 (D.C.Cir.2011) (per curiam). Relatedly, to the extent Petitioners assert that other potentially relevant documents were improperly withheld as confidential, the contention that such documents "`might' support [their] position [is] far too speculative to provide a basis for setting aside FERC's judgment," B & J Oil, 353 F.3d at 78, much less for finding a due process violation.
Third, Petitioners fault the Commission for failing to reopen the record to consider the "Kuprewicz Report." We review that decision "only for an abuse of discretion," Cooley v. FERC, 843 F.2d 1464, 1473 (D.C.Cir.1988), and we find none here. Of course, FERC did consider the report, at least in a sense. True, the Commission declined to reopen the record and revisit its prior findings based on Mr. Kuprewicz's findings. But in the course of so concluding, the Commission undertook an analysis of his report and opinions. Reh'g Order, ¶¶ 75-80. In the end, the Commission believed his analysis "suffer[ed] from several flaws" and did not provide support for his position on many points, particularly where his assessment differed from that of FERC's staff. Id. ¶¶ 76, 79; Second Reh'g Order, ¶ 9. The Commission thus found that "Mr. Kuprewicz's study provides no basis for reversing [its] approval of the Minisink Project."
In approving the Minisink Project, the Commission accorded the Wagoner Alternative the serious consideration it was due, in keeping with its statutory obligations under the NGA and NEPA. In its judgment, the Commission did not think the Wagoner Alternative preferable and concluded that the Minisink Project, as put forward by Millennium, would serve the public interest and necessity. We are simply not empowered to second-guess the Commission's determination on this point or to substitute our judgment for the Commission's. Our much more limited role is, instead, to confirm that FERC thoroughly and reasonably examined the issue, and on the record before us, we are assured that it did.
For this and the other reasons we have explained, the petitions for review are denied.
Certificate Order, ¶¶ 26-27. FERC's Certificate Order also incorporated the EA itself, which goes through its own relatively detailed comparison between the two proposals. See J.A. 484-89.