On April 23, 2019, FERC denied Flint Riverkeeper’s and Chattahoochee Riverkeeper’s (“Riverkeepers”) request for attorney’s fees after the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) vacated the certificates of public convenience and necessity (“CPCNs”) FERC issued for the Southeast Market Pipelines Project (see March 20, 2018 edition of the WER).  In doing so, FERC found, among other things, that the certificate proceeding at FERC did not qualify as an “adversary proceeding” under the Equal Access to Justice Act (“EAJA”) for which the Riverkeepers could seek attorney’s fees because: (1) certificate proceedings are excluded from the definition of “adversary proceeding” and (2) FERC is not represented by counsel in a certificate proceeding but rather acts as an adjudicator.

As a matter of background, on February 2, 2016, FERC issued CPCNs for the Southeast Market Pipelines Project.  After FERC denied rehearing of its certificate order, the Riverkeepers petitioned the D.C. Circuit for review.  The D.C. Circuit ultimately vacated FERC’s certificate order on August 22, 2017, in Sierra Club v. FERC, finding that FERC did not comply with the National Environmental Policy Act’s environmental review requirements.  On October 9, 2018, the D.C. Circuit awarded the Riverkeepers reasonable attorney’s fees incurred in the court’s proceedings pursuant to the EAJA. The D.C. Circuit also directed FERC to pay court related attorney fees and remanded back to FERC the additional question of whether the Riverkeepers are entitled to attorney’s fees for the proceedings before the agency.

On remand, FERC denied the Riverkeepers’ request for attorney’s fees because the adjudication of the at-issue application was not an “adversary adjudication” with the meaning of the EAJA, which excludes an adjudication “for the purpose of” granting a license.  FERC explained that under the Administrative Procedure Act, “license” “includes all or part of an agency permit, approval, certificate, registration, charter, membership, statutory exemption or other form of permission.”  Because a CPCN is within the Administrative Procedure Act’s broad definition of a “license,” FERC found that a certificate proceeding is not an “adversary adjudication” for EAJA.  FERC also reasoned that the definition of “adversary adjudication” is limited to adjudications in which the United States is represented by counsel, and that in a certificate proceeding FERC merely acts as an adjudicator.

Riverkeepers argued that because the adjudication at the agency level culminated in a rehearing order, not a license order, the proceeding was subject to the relevant EAJA provisions.  FERC disagreed, and asserted that a rehearing of an underlying certificate is an adjudication for granting or renewing a license.  Although FERC’s certificate order is subject to an administrative appeal as a rehearing, FERC concluded that the result of the proceeding is whether FERC will grant or deny the underlying certificate at issue.  FERC also noted that the Riverkeepers failed to document the attorney’s fees incurred during the FERC licensing proceeding.  Lastly, FERC noted the Riverkeepers appeared to seek recovery for all fees incurred during the licensing proceeding, not just the fees that related to the issues the D.C. Circuit remanded.  For these reasons, and others, FERC denied the Riverkeepers’ request for attorney’s fees.

Click here to read the full Order.