Docket Number: _________

UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT

In Re Minisink Residents for Preservation of the Environment and Safety

Petition of Writ for Emergency Stay Under the All Writs Act

BRIEF AND REQUIRED SHORT APPENDIX OF PETITIONERS, MINISINK RESIDENTS FOR PRESERVATION OF THE

ENVIRONMENT AND SAFETY

Carolyn Elefant LAW OFFICES OF CAROLYN ELEFANT 2200 Pennsylvania Avenue NW, Fourth Floor Washington D.C. 20037 Phone: 202-297-6100 Email: carolyn@carolynelefant.com Attorney for the Petitioners, Minisink Residents For Preservation Of The Environment And Safety

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

In Re: Minisink Residents for ) Environmental Preservation ) Docket No. __________ and Safety (MREPS) )

RULE 26.1 DISCLOSURE STATEMENT

The Minisink Residents for Environmental Preservation and

Safety (MREPS), petitioner in the above captioned proceeding, is an

unincorporated association comprised the following residents of

Minisink, New York: Laurie Arias, Leanne Baum, Asha Canalos,

Karen Gartenberg, Deborah Lain, Pramilla Malick, Michael Mojica,

John Odland, Carolyn Petschler and Tom Salamone. MREPS was

formed for the purpose of opposing a 12,600 horsepower compressor

station proposed by Millennium Pipeline LLC which would be

located within Minisink between 650 to 2500 feet of MREPS’

members’ homes. In July 2011, Millennium filed at the Federal

Energy Regulatory Commission (FERC) a Section 7 certificate for

public necessity and convenience under the Natural Gas Act to

construct and operate the compressor station.

MREPS members are directly impacted by the proposed

compressor station. The compressor station will spew toxic emissions

and inflict industrial level noise on this residential-rural community.

Millennium will also raze trees on the site (which it owns), removing

the visual barrier between MREPS members’ homes and the

compressor station thereby reducing property values. Several

MREPS members own small organic farms which may be adversely

impacted by toxic emissions and agricultural opportunities will be

limited in light of Millennium’s destruction of farmland.

MREPS does not have any parent corporation or or any

publicly held corporation that owns ten percent or more of its stock.

Respectfully submitted,

_________________________________ Carolyn Elefant LAW OFFICES OF CAROLYN ELEFANT 1629 K Street N.W. Suite 300 Washington D.C. 20006 (202) 297-6100 Carolyn@carolynelefant.com

Counsel to MREPS

Dated October 4, 2012 WASHINGTON DC

Table of Contents I. INTRODUCTION: Extraordinary times demand extraordinary remedies ................. 4 II. BACKGROUND.................................................................................................................... 4

A. The Parties ......................................................................................................................... 4 B. Procedural History .......................................................................................................... 5

1. Millennium proposal and Wagoner Alternative ...................................................... 5 2. Commission Order ........................................................................................................ 7 3. Commencement of Construction ................................................................................ 9

II. STANDARD OF REVIEW ................................................................................................. 11 III. ARGUMENT........................................................................................................................ 11

A. The statutory remedy is inadequate where petitioners seek a stay of a non-final Commission order. ................................................................................................................. 11 B. MREPS is facing irreparable harm now! ..................................................................... 13

1. Razed trees and destruction to farmland will take generations to restore and adverse impacts to property values will remain ............................................................ 13 2. It is not clear whether the Commission can order removal of the compressor station even if the order is reversed terminate Millennium’s service to third party customers once it has commenced and the order is reversed. ..................................... 17

B. There is a strong likelihood of success on the merits where an agency misapplies its own policy and issues a divided ruling. ........................................................................ 18 C. Millennium does not face any harm if a stay is granted. ............................................ 20

4. Justice requires a stay.................................................................................................. 21 IV. CONCLUSION ................................................................................................................ 22

Table of Authorities

Cases

*American Gas Association v. FERC, 593 F.3d 14 (D.C. Cir. 2010) .............................................................. 20

Ashland Oil, Inc. v. FTC, 409 F. Supp. 297, 307 (D.D.C.), aff'd, 179 U.S. App. D.C. 22, 548 F.2d 977 (D.C. Cir. 1976) ......................................................................................................................................................... 14

*Canal Authority of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974) ........................................................ 15

City of Centralia v. FERC, 213 F.3d 742 (D.C. Cir. 2000) ............................................................................. 3, 19

City of Idaho Falls v. FERC, 629 F.3d 222 (D.C. Cir. 2011) ......................................................................... 3, 19

Mine Reclamation Corp. v. FERC, 30 F.3d 1519 (D.C. Cir. 1994) .................................................................. 20

*Nevada v. Department of Energy, 457 F. 3d 78 (D.C. Cir. 2006) ................................................................... 4

Parker v. United States, 309 F.Supp. 593 (D. Colo 1970) ................................................................................... 14

Piedmont Environmental Council v. FERC, 558 F.3d 307 (4th Cir. 2008) ............................................. 3, 19

Public Utility Commission v. Bonneville Power Admin., 767 F.2d 622, 630 (9th Cir. 1985) ............... 3

Public Utility District v. FERC, 471 F.3d 1053 (D.C. Cir. 2004) ................................................................. 3, 19

*Reynolds Metal Company v. FERC, 777 F.2d 760, 762 (D.C. Cir. 1985) .................................................. 12

Virginia Petroleum Jobbers, 259 F.2d at 925 ........................................................................................................... 17

Way of Life Television Network, Inc. v. Federal Communications Commission, 593 F.2d 1356, 1359 (D.C.Cir.1979) ......................................................................................................................................................... 20

*West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971) ... 15

*Wisconsin Gas v. FERC, 758 F.2d 669 (D.C. Cir. 1985) ..................................................................... 11, 14, 21

Statutes

15 U.S.C. §717f ......................................................................................................................................................................... 5

717r(a) of the NGA .............................................................................................................................................................. 13

Regulations

139 FERC ¶61,037 (2012) ................................................................................................................................................... 16

*88 FERC ¶61,227 (1999) ..................................................................................................................................................... 9

90 FERC ¶61,128 ................................................................................................................................................................ .... 9

FERC Cases

Millennium Pipeline Company, LLC, Order Issuing Certificate, 140 FERC ¶61,045 (July 17, 2012) .. 4

Sabine Pass Liquification LLC, 140 FERC ¶61,076 (2012) ....................................................................................... 2

I. INTRODUCTION: Extraordinary times demand extraordinary

remedies

Injunctive relief under the All Writs Act is an extraordinary remedy.

But this petition for an emergency stay of the certificate of public necessity

and convenience approved by a 3-2 majority of the Federal Energy

Regulatory Commission (Commission) authorizing Millennium Pipeline’s

Minisink Compressor Station under Section 7 of the Natural Gas Act1

Confronting the prospect of a noisy, emission-spewing 12,600-

horsepower compressor station a stone’s throw from their homes, the

Minisink Residents for Preservation of the Environment and Safety

(MREPS) could have employed tactics commonly invoked by project

opponents such as “fly-specking” the Commission’s environmental

analysis (EA)

involves an extraordinary set of facts.

2

1 Millennium Pipeline Company, LLC, Order Issuing Certificate, 140 FERC ¶61,045 (July 17, 2012) (Certificate Order).

or converting the proceeding into a referendum on

2 Nevada v. Department of Energy, 457 F. 3d 78 (D.C. Cir. 2006) (“It is well settled that the court will not "flyspeck" an agency's environmental analysis, looking for

2

fracking.3 They did not. Instead, MREPS members sua sponte identified the

environmentally and operationally preferable Wagoner Alternative4

Having reviewed dozens of Commission rulings, this court can

appreciate both the improbability of a 3-2 decision and the strong

likelihood that MREPS will prevail if not on rehearing,

which

enable Millennium to meet its project objectives and was ultimately

endorsed by the Commission Chairman and another Commissioner who

dissented from the Certificate Order.

5

any deficiency no matter how minor.”)

then on judicial

review where reversal rates are far more common for divided Commission

3 Sabine Pass Liquification LLC, 140 FERC ¶61,076 (2012) (rejecting causal relationship between LNG export or pipeline construction and fracking activity). 4 Under the Wagoner Alternative, Millennium would construct a smaller compressor station at a site previously used by Millennium’s affiliate for a temporary compressor station and replace a seven-mile segment of aging pipeline which Millennium plans to replace in 2014 according to its own PowerPoint presentation. Attachment 3 (MREPS Rehearing Request at 12). 5 MREPS’ timely request for rehearing, which is a jurisdictional prerequisite to judicial review under the Natural Gas Act, 15 U.S.C. §717r, was filed on August 15, 2012 and is pending before the Commission. MREPS’ ability to prosecute its rehearing request has been hampered by the Commission’s delay in responding to outstanding FOIA requests filed by MREPS members. See Attachment 1A, Odland Affidavit at ¶ 9.

3

orders.6 Yet without an immediate stay of the Certificate Order MREPS

victory will ring hollow. Although MREPS understands courts’ reluctance

to preempt agency decision, without intervention, the case remains in a

state of regulatory limbo due to the Commission’s inaction since the

Natural Gas Act precludes MREPS from seeking judicial review or

bringing suit in another forum.7

While MREPS is stuck, Millennium plows forward. As of this writing,

Millennium has commenced preparatory work to construction

8

6 See, e.g., City of Idaho Falls v. FERC, 629 F.3d 222 (D.C. Cir. 2011)(vacating Commission order related to annual charges where Commissioner dissented below); Piedmont Environmental Council v. FERC, 558 F.3d 307 (4th Cir. 2008)(overturning Commission rule on authority for backstop siting where Commissioner dissented in issuance), American Gas Association v. FERC, 593 F.3d 14 (D.C. Cir. 2010)(remanding case to consider dissenting views of Chair Wellinghoff); Public Utility District v. FERC, 471 F.3d 1053 (D.C. Cir. 2004)(reversing Commission order based on vigorous dissent of Commissioner Massey); City of Centralia v. FERC, 213 F.3d 742 (D.C. Cir. 2000)(vacating hydro order following 3-2 vote by Commission).

and will

complete the compressor station before MREPS’ case reaches this court,

7 Public Utility Commission v. Bonneville Power Admin., 767 F.2d 622, 630 (9th Cir. 1985)(ruling that federal circuit court has exclusive authority over review of Commission order under Federal Power Act (analogous provision to NGA)) 8 Attachment 1B, Mojica Affidavit at ¶ 11.

4

thus restricting this court’s ability to grant relief. The damage resulting

from construction specifically, tree-removal, destruction of farmland and

associated diminution of property values – will not be undone for

generations. And even if this court reverses the Certificate Order, it is

unclear whether the Commission has authority to order Millennium to

cancel delivery to contract customers once the compressor station is in

service. Given MREPS’ likelihood of success on the merits, potential for

irreparable harm and lack of any other available remedy, an emergency

stay of the effective date of the Certificate Order and cessation of all

construction activity by Millennium pending a final decision is warranted

under the All Writs Act.

II. BACKGROUND A. The Parties

MREPS is an unincorporated community group comprised of the

following Minisink residents: Laurie Arias, Leanne Baum, Asha Canalos,

Karen Gartenberg, Deborah Lain, Pramilla Malick, Michael Mojica, John

Odland, Carolyn Petschler and Tom Salamone. The majority of MREPS

Members are located within 650 to 2500 feet from the proposed compressor

5

station site. Both MREPS as a group and each of its members individually

timely intervened in the docket below.

Millennium Pipeline (Millennium) is a Delaware limited liability

company owned by subsidiaries of NiSource, National Grid PLC and DTE

Energy. Millennium owns and operates a Commission-jurisdictional

natural gas pipeline system across southern New York. The Minisink

Compressor Station is the first installation of Millennium’s planned series

of upgrades to its pipeline which includes the Hancock Compressor Station

(now in pre-filing) and replacement of the Neversink segment (planned for

2014).9

B. Procedural History

1. Millennium proposal and Wagoner Alternative

On July 14, 2011, Millennium filed an application for a certificate of

public necessity and convenience for the Minisink Compressor Station

under Section 7 of the NGA, 15 U.S.C. §717f. According to Millennium’s

application, the 12,260 hp compressor station is necessary for Millennium

9 See Attachment 3, Rehearing Request at 12 (describing upgrades and citing Millennium Powerpoint presentation); see also Mojica Affidavit at ¶ 5.

6

to meet delivery obligations totaling 225,000 dekatherms of gas/day to

three contract shippers at an interconnection point with Algonquin Gas in

Ramapo, New York.

As proposed by Millennium, the Minisink Compressor would be

located on a site owned by Millennium within a half-mile of 200 residents,

and less than 700 feet from homes of several MREPS members. To

construct the compressor, Millennium would raze indigenous trees that

shield the site from nearby houses, disturb bald eagle nesting areas and

permanently destroy agricultural land. The compressor would endanger

the health and safety of residents with toxic emissions and inflict persistent,

industrial-level noise. Residential home values would plummet due to

proximity to an industrial nuisance and destruction of the character of this

agricultural, rural community.10

The Commission regulations require Millennium to identify project

alternatives as part of the application process. While Millennium listed a

few infeasible options, it never mentioned the possibility of siting a

10 Attachment 1B, Mojica Affidavit at ¶ 3, Attachment 3, Rehearing Request.

7

compressor at a nearby site adjacent to the Wagoner metering station

(which previously housed a compressor station operated by a Millennium

affiliate from 2008-2011) and replacing the aging seven-mile Neversink

segment of its pipe, an activity that Millennium was already planning to

undertake in 2014.11

2. Commission Order

Rather, it was MREPS members who brought the

Wagoner Alternative to the Commission’s attention, leading to reopening

of the comment period for public input on the Wagoner Alternative.

On July 17, 2012, a sharply divided Commission, by a 3-2 majority,12

Applying the first step of its Certificate Policy, the Commission majority

accepted Millennium’s claimed need for the Compressor Station based on

its existing precedent agreement and determined that existing customers

would not subsidize the cost of the Compressor Station. Having found

need and no subsidies, the Commission agreed with the finding of no

issued an order approving a certificate for the Minisink Compressor.

11 Attachment 1B, Mojica Affidavit at ¶6. 12 The majority included a concurrence by Commissioner Tony Clark, who had been sworn in on June 15, 2012, just a month earlier. See http://ferc.gov/about/com-mem/clark.asp

8

significant impact in the environmental assessment (EA) prepared by staff,

with nary a mention of the Wagoner Alternative. Accordingly, the

Commission approved the Millennium Compressor Station.

By contrast, dissenting Chairman Wellinghoff and Commissioner

LaFleur did not confine their review to Millennium’s proposal alone.

Instead, as required by the Commission’s own Certificate Policy, the

dissenting Commissioners took a more expansive view of the record, as

protection of the public convenience and necessity demands. Based on this

more comprehensive review, Chairman Wellinghoff concluded that:

I believe that the Millennium Pipeline should have considered the long-term effects of improved reliability, greater impact on capacity, reduced emissions and reduced fuel costs offered by the Wagoner Alternative and proposed that comprehensive solution in lieu of the short-term fix presented by Minisink.

Commissioner LaFleur also questioned the majority’s approach:

I am dissenting in this case because I do not believe that the majority has correctly applied the standards set forth in the Certificate Policy Statement to the facts in the record before us. Based upon that record, I believe that the serious adverse consequences of the Minisink compressor facility outweigh its

9

public benefits, particularly given the existence of the environmentally preferable Wagoner Alternative.

Indeed, Commissioner LaFleur even went so far as to state in

her dissent that the EA’s finding that the Wagoner Alternative “does

not offer significant environmental advantages over the proposed

project” is incorrect.13

3. Commencement of Construction

The Certificate Order took effect on the date of issuance. On August

15, 2012, MREPS filed a timely request for rehearing (Attachment 3) which

is pending at the Commission. MREPS challenged various aspects of the

order, including the Commission’s failure to follow its Certificate Policy

Statement,14

13 Attachment 3, Rehearing at 24.

unlawful segmentation of environmental review of the project

in violation of the National Environmental Policy Act (NEPA) and due

process violations arising out of lack of access to data relied on by the

Commission in its decision that MREPS members sought through the

14 88 FERC ¶61,227 (1999), order on clarification, 90 FERC ¶61,128.

10

Commission’s CEII process and Freedom of Information Act (FOIA)

requests.15

On August 24, 2012, Millennium reported that it complied with

the pre-construction conditions in the Certificate Order and sought

permission to commence construction. On August 28, 2012, MREPS

filed an emergency stay request, asserting that Millennium did not

satisfy the conditions and but that even if it had, a stay was necessary

to preserve the status quo pending rehearing and judicial review. See

Stay Request, Attachment 4. On September 18, 2012, the

Commission’s Office of Energy Projects approved Millennium’s

request to commence construction, and MREPS renewed its request

for a stay. Attachment 5. On October 1, Millennium crews began

arriving at the site, with tree clearing activity poised to begin any

day.

16

15 See Attachment 1, Odland and Mojica Affidavits. 16 Mojica Affidavit at ¶ 11.

11

II. STANDARD OF REVIEW

MREPS seek a stay under the All Writs Act provision of the U.S.

Code, 28 U.S.C. § 1651(a) which enables a reviewing court to protect its

prospective jurisdiction and applies when statutory remedies are

inadequate.17

III. ARGUMENT

Once a petitioner shows the lack of statutory remedy, the

well-established requirements governing motions for stay pending appeal

apply. Id. These include the likelihood of irreparable harm absent a stay,

likelihood that the movant will prevail on the merits, (3) the possibility of

substantial harm to other parties if the stay is granted; and (4) the public

interest in granting the stay. Wisconsin Gas v. FERC, 758 F.2d 669, 674 (D.C.

Cir. 1985).

A. The statutory remedy is inadequate where petitioners seek a stay of a non-final Commission order.

This court recognizes that “preliminary condition distinctive to All

Writs relief” – i.e., lack of statutory remedy – is satisfied when petitioners 17 Reynolds Metal Company v. FERC, 777 F.2d 760, 762 (D.C. Cir. 1985)(acknowledging that lack of statutory remedy condition is “arguably” satisfied when filed prior to issuance of final order by agency).

12

seek review of a non-final Commission order. In Reynolds Metal, the

Reynolds, an industrial customer of a utility invoked the All Writs Act for

an emergency stay of a Commission order that imposed immediate

financial obligations on the company but did not contain a commitment for

refunds if the order was reversed on appeal. Reynolds filed the emergency

stay while its request for rehearing of the Commission order was still

pending and therefore, the order was not yet final for judicial review. The

court held that:

since [the Commission Order] was not yet final, no direct appeal from it yet lay and a stay pending appeal was not available to prevent irreparable harm that was allegedly occurring.18

Finding no alternative relief by statute, the court held that the All Writs Act

had been properly invoked.

Here, MREPS has likewise properly invoked the All Writs Act. Like

the petitioner in Reynolds, MREPS’ request for rehearing of the Certificate

Order is pending, thereby precluding direct appeal under the NGA.

Moreover, the statute does not impose any deadlines by which the 18 Reynolds Metals, 777 F.2d at 762.

13

Commission must rule on either the rehearing request or MREPS’ motions

for stay, leaving a final ruling entirely within the Commission’s

discretion.19

B. MREPS is facing irreparable harm now!

As such, MREPS’ rehearing and stay requests may linger for

months before MREPS can seek judicial review and request a stay from the

court under Section 717r(c) of the NGA. Because this remedy will not

prevent irreparable harm caused by imminent construction, the

extraordinary relief offered by the All-Writs Act is the only available

option.

1. Razed trees and destruction to farmland will take generations to restore and adverse impacts to property values will remain.

The likelihood of irreparable harm is the gravamen of a claim for

injunctive relief. The injury must be “both certain and great,” and of such

imminence that there is a “clear and present need for equitable relief to

19 Under Section 717r(a) of the NGA, the Commission has 30 days to rule on a request for rehearing or it will be deemed final for purposes of judicial review. To allow itself additional time to rule on rehearing requests, the Commission may, as it has in this case, issue a tolling order granting rehearing for the limited purpose of considering the arguments raised. In this way, the Commission effectively tolls or stops the 30-day clock and prevents its order from becoming final before it has a chance to rule.

14

prevent irreparable harm.20

By contrast, MREPS readily satisfies this court’s exacting standards

for injunctive relief. In the absence of a stay of the effective date of the

certificate, Millennium will – indeed it has – commence construction of the

Minisink Compressor Station. As of this writing, Millennium has deployed

equipment to the site

This court sets a high bar for injunctive relief,

going so far in Wisconsin Gas, 758 F.2d at 675 as to chastise petitioners for

even filing a stay request based on specious, vague and speculative claims

of financial injury.

21

Multiple courts hold that tree-clearing constitutes irreparable harm.

and will begin to clear dozens of trees, adversely

impacting endangered species such as the Indiana bat and bald eagle

demolishing the visual screen that stands between the industrial eyesore

and MREPS’ members’ homes and community.

22

20 Wisconsin Gas, 758 F.2d at 675, citing Ashland Oil, Inc. v. FTC, 409 F. Supp. 297, 307 (D.D.C.), aff'd, 179 U.S. App. D.C. 22, 548 F.2d 977 (D.C. Cir. 1976).

21 Mojica Affidavit at ¶ 11. 22 Parker v. United States, 309 F.Supp. 593 (D. Colo 1970)(“we cannot give effect to [the interest of the industry, for the cutting of the trees, is as we have noted, too final

15

That ruling applies with equal force here where the Commission’s EA and

the dissenting Commissioners acknowledge that even with the replanting

required as mitigation, the visual screen provided by trees will take years

to regenerate.23

Millennium’s destruction of agricultural land is equally irreparable.

This damage to agricultural land is why the New York State Department of

Agriculture and Markets and the Orange County Planning Board strongly

In the meantime, the loss of trees has residual impacts on

property values, since a visible compressor station will reduce MREPS’

members’ home values.

and conclusive. It must await the processes of law.”); Canal Authority of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974)(alleging that flooding of trees would result in irreparable harm to river’s ecology), West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971)(noting that trees may not regenerate for several generations, so harm from removal is irreparable). 23 See Attachment 2, Commission Order, LaFleur Dissent at n. 5(noting that “the Compressor Station would be visible during most of the year and in the winter, significant portions would be visible from nearby residences but with the measures included in the visual screening plan for replanting trees, visual impacts would be minimized over time.

16

oppose construction on the property.24

Moreover, the damage to trees and loss of agricultural land is not

redressed by conditions in the certificate, as it was in National Fuel,

25 a case

where the Commission denied a stay of a certificate. In National Fuel, the

Commission explained that even if the compressor station was built while

rehearing was pending, so long as the developer complied with the terms

of the certificate, the anticipated harm would be fully mitigated. By

contrast, in this case, the certificate does not fully mitigate tree loss, land

loss and reduced property values.26

24 Attachment 2, Certificate Order, Wellinghoff Dissent (noting objections of NYS Agricultural Department).

Here, both the Environmental

Assessment and certificate order acknowledge that the replanting of trees

will somewhat minimize adverse visual impacts, but this would only be

25 139 FERC ¶61,037 (2012). 26 In National Fuel, a citizens group sought a stay of construction of a compressor station, arguing that impacts on air and water quality constituted irreparable harm. However, the Commission explained that even if the compressor station were built, so long as the developer complied with the terms of the certificate, the anticipated harm would be fully mitigated. By contrast, in this case, the certificate does not fully mitigate tree and land losses.

17

over a long period of time. Both Chairman Wellinghoff and Commissioner

LaFleur, in their respective dissents, emphasize that the loss of agricultural

lands is a long-term and lasting impact. Because the certificate does not

fully mitigate loss of trees and agricultural land, the harm caused by

Millennium’s compressor station is irreparable.

2. It is not clear whether the Commission can order removal of the compressor station even if the order is reversed and terminated, Millennium’s service to third party customers once it has commenced and the order is reversed.

In addition to the destruction of trees and agricultural land, this court

recognizes that the possibility that other corrective relief will not be

available at a later date weighs heavily in favor of a finding of irreparable

harm.27

27 Virginia Petroleum Jobbers Assn. v. FPC, 259 F.2d at 925 (D.C. Cir. 1958).

The absence of corrective relief is a real possibility here because

once Millennium completes the compressor station and begins service to

contract customers, the Commission may not have authority to order

termination of service even if the Certificate Order is vacated.

Millennium’s customers are third-parties and not subject to Commission

18

jurisdiction so it is not clear whether the Commission could order

Millennium to abandon service to those customers even if the Certificate

Order is reversed on appeal. See Section 717f(b) of the NGA (requiring

approval to abandon service).

Equally seriously, the certificate does not contain any provisions by

which the Commission could force Millennium to remove a non-

operational compressor station from the site. As a result, even if MREPS

prevails on appeal, its members and the Minisink community would

remain saddled with a non-functioning compressor station and the

concomitant reduced property values flowing from proximity to an

industrial eyesore.

Because the potential harm to MREPS and the agricultural

environment is substantial and cannot be reversed and because the

Commission may lack authority to fashion a remedy even if MREPS

prevails on appeal, MREPS satisfies the “irreparable harm” prong of the

Commission’s criteria for a stay.

B. There is a strong likelihood of success on the merits where an agency misapplies its own policy and issues a divided ruling.

19

MREPS faces a strong likelihood of success on the merits.

Millennium’s certificate was approved by the slimmest of margins; a three-

Commission majority, with Commissioner Clark concurring. Chairman

Wellinghoff and Commissioner LaFleur dissented, finding that the

Commission misapplied its own Certificate Policy and that the Minisink

Compressor was not in the public convenience and necessity in light of the

preferable Wagoner Alternative. Though often an administrative agency’s

findings are entitled to deference, appellate courts are often hard-pressed

to defer to a divided Commission. Indeed, the Commission’s orders are

most frequently overturned on appeal where at least one Commissioner

dissents.28

28 See, e.g., City of Idaho Falls v. FERC, 629 F.3d 222 (D.C. Cir. 2011)(vacating Commission order related to annual charges where Commissioner dissented below); Piedmont Environmental Council v. FERC, 558 F.3d 307 (4th Cir. 2008)(overturning Commission rule on authority for backstop siting where Commissioner dissented in issuance), American Gas Association v. FERC, 593 F.3d 14 (D.C. Cir. 2010)(remanding case to consider dissenting views of Chair Wellinghoff); Public Utility District v. FERC, 471 F.3d 1053 (D.C. Cir. 2004)(reversing Commission order based on vigorous dissent of Commissioner Massey); City of Centralia v. FERC, 213 F.3d 742 (D.C. Cir. 2000)(vacating hydro order following 3-2 vote by Commission).

20

Moreover, with regard to this particular case, MREPS raises at least

two errors where the law is unambiguous. First, MREPS argued (and the

dissenting Commissioners agreed) that the majority misapplied the

Commission’s Certificate Policy. As this court has stated, [i]t is a 'well-

settled rule that an agency's failure to follow its own regulations is fatal to

the deviant action.' "29 Second, MREPS argued that the Commission failed

to respond to the concerns of the dissenting commissioners, thus rendering

the order arbitrary and capricious as in American Gas Association v. FERC,

593 F.3d 14 (D.C. Cir. 2010) and other cases cited therein.30

C. Millennium does not face any harm if a stay is granted.

Because of the

strong likelihood that MREPS will prevail on appeal, a stay is necessary to

preserve the status quo to ensure that MREPS’ eventual victory is not

hollow.

While the harm to MREPS is irreparable in the absence of a stay, 29 Mine Reclamation Corp. v. FERC, 30 F.3d 1519 (D.C. Cir. 1994) citing Way of Life Television Network, Inc. v. Federal Communications Commission, 593 F.2d 1356, 1359 (D.C.Cir.1979). 30 MREPS asserted multiple other errors on rehearing, from unlawful segmentation violation of NEPA and due process violations arising out of delayed responses to MREPS’ CEII and FOIA requests. See MREPS Rehearing, Attachment 2.

21

Millennium would not be prejudiced if a stay is granted. To the contrary,

Millennium seeks to go forward with construction to meet the November 1,

2012 in-service date under its precedent agreements. But even if

Millennium fails to make the in-service date, under the terms of the

precedent agreement, Millennium does not face any financial liability.31

4. Justice requires a stay.

In

any event, any potential harm to Millennium from breach of the agreement

is purely an economic loss which in and of itself does not constitute

irreparable harm. Wisconsin Gas v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985).

MREPS and its members are neither a large corporation or

government agency, but a group of citizens who have devoted two years of

their lives to this matter. They have eschewed traditional NIMBY tactics

and instead developed a win-win solution for the community and

Millennium that garnered the support the Commission Chairman and a

second Commissioner. They abided by the Commission’s regulatory

process though hobbled by access to information, filing compliant

31 See supra n.1(describing terms of Precedent Agreements).

22

comments and challenges and following the procedures for obtaining CEII

and FOIA data critical to meaningful participation in the case.32

IV. CONCLUSION

Yet after

doing exactly what is expected of a party to an administrative process, all

of MREPS’ efforts are for naught if Millennium is permitted to complete

construction of the compressor station before MREPS has its day in court.

If justice does not require a stay under the facts presented here, then

frankly, there is no justice.

WHEREFORE, for the foregoing reasons MREPS asks this Court to

grant this request for an emergency stay under the All Writs Act, and stay

the effective date of the Certificate Order so as to halt Millennium, its

agents and contractors, from continuing with any further construction of

the Minsink Compressor Station, including blasting, tree clearing or

groundbreaking activity throughout the pendency of the rehearing request

and until such time as a final decision is issued judicial review.

32 See Attachment 1A, Odland Affidavit at ¶ 9 (describing delays in obtaining FOIA materials).

23

Respectfully submitted,

______________________________ Carolyn Elefant LAW OFFICES OF CAROLYN ELEFANT 2200 Pennsylvania Avenue NW, Fourth Floor Washington D.C. 20037 202-297-6100 carolyn@carolynelefant.com Dated October 4, 2012

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

In Re: Minisink Residents for ) Environmental Preservation ) Docket No. __________ and Safety (MREPS) ) Certificate of Service On October 5, 2012, I caused to be served the foregoing Writ by hand delivery on: Robert Solomon, Solicitor Federal Energy Regulatory Commission 888 First Street NE Wash DC 20426 Kimberly Bose Secretary Federal Energy Regulatory Commission 888 First Street NE Wash DC 20426 Joseph Koury Ryan Collins Counsel to Millennium Wright & Talisman 1200 G Street Northwest #600 Washington, DC 20005