## Facts

- Millennium Pipeline Company sought to build the Valley Lateral Project, a 7.8-mile natural-gas pipeline extension in Orange County, New York, to serve a new power plant.
- The Federal Energy Regulatory Commission (FERC) issued Millennium a certificate of public convenience and necessity conditioned on obtaining all required federal authorizations, including Clean Water Act (CWA) § 401 state water-quality certification.
- Millennium submitted a § 401 certification application to the New York State Department of Environmental Conservation (NYDEC) on November 23, 2015.
- Over the following year, NYDEC requested supplemental information; by November 2016, NYDEC acknowledged Millennium had fully responded.
- NYDEC took the position that it could act on the application beyond one year from submission and asserted it had until at least August 30, 2017.
- Millennium asserted NYDEC’s failure to issue or deny certification within CWA § 401’s one-year limit constituted a waiver of the state’s § 401 authority.
- Millennium petitioned the D.C. Circuit seeking relief directed at NYDEC’s inaction, including an order compelling NYDEC to act or treating the inaction as waiver.

## Issues

1. Whether the D.C. Circuit had jurisdiction under the Natural Gas Act (NGA) to review and remedy a state agency’s alleged failure to act on a CWA § 401 certification application before FERC determined whether waiver occurred.
2. Whether the proper consequence of a state’s failure to act within CWA § 401’s one-year deadline is judicial compulsion of state action, or statutory waiver to be applied in the federal licensing process.

## Decision

- The court dismissed the petition for lack of jurisdiction.
- The court held that Millennium’s challenge was not directed to a reviewable FERC order under the NGA.
- The court concluded that, even assuming unlawful state delay, the CWA supplies waiver as the statutory consequence, and the waiver question must be presented to FERC in the first instance.
- The court did not decide whether NYDEC actually violated the one-year limit and did not order NYDEC to act.

## Legal Principles

- Under CWA § 401, if a state fails or refuses to act on a certification request within the statutory period (not exceeding one year), the certification requirement is waived.
- The NGA’s appellate review provision authorizes courts of appeals to review FERC orders; it does not provide original jurisdiction to supervise or compel state action on § 401 applications.
- In projects requiring a FERC certificate, disputes about § 401 waiver due to state inaction must be raised to FERC first; judicial review lies, if at all, after FERC issues a decision that applies (or declines to apply) waiver.

## Conclusion

The D.C. Circuit held it lacked jurisdiction to grant relief against NYDEC for alleged delay on a CWA § 401 application because the statutory remedy for unlawful delay is waiver and the waiver determination must be made by FERC before any court of appeals review.


Millennium Pipeline Co., LLC v. Seggos, 860 F.3d 696 (D.C. Cir. 2017)