17-3895-ag
Delaware Riverkeeper Network v. New York State Department of Environmental Conservation

                                  UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 18th day of December, two thousand nineteen.

PRESENT:           JOSÉ A. CABRANES,
                   JOSEPH F. BIANCO,
                                 Circuit Judges,
                   CHRISTINA REISS,
                                 District Judge. *


DELAWARE RIVERKEEPER NETWORK AND
DELAWARE RIVERKEEPER,

                             Petitioners,

                             v.                                                           17-3895-ag

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION; BASIL SEGGOS,
ACTING COMMISSIONER OF THE NEW YORK STATE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION;
JOHN FERGUSON, CHIEF PERMIT ADMINISTRATOR OF
THE NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION,

                             Respondents,



    *
     Judge Christina Reiss, of the United States District Court for the District of Vermont, sitting
by designation.

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MILLENNIUM PIPELINE COMPANY, L.L.C.,

                       Intervenor.


FOR PETITIONERS:                                           JORDAN B. YEAGER, Curtin & Heefner
                                                           LLP, Yardley PA (Aaron Stemplewicz,
                                                           Delaware Riverkeeper Network, LLC,
                                                           Bristol, PA, on the brief).

FOR RESPONDENTS:                                           BRIAN D. GINSBERG, Assistant Solicitor
                                                           General (Andrea Oser, Deputy Solicitor
                                                           General, and Lisa M. Burianek, Deputy
                                                           Chief of Environmental Protection
                                                           Bureau, on the brief), for Letitia James,
                                                           Attorney General, State of New York,
                                                           Albany, NY.

FOR INTERVENOR:                                            SEAN MAROTTA, Hogan Lovells US LLP
                                                           (Catherine E. Stetson and Benjamin A.
                                                           Field, Hogan Lovells US LLP; Paul
                                                           Korman, Michael R. Pincus, and A.
                                                           Gregory Junge, Van Ness Feldman LLP,
                                                           on the brief), Washington, DC.

      On Petition for Review from the New York State Department of Environmental
Conservation.

      UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the Intervenor’s Motion to Dismiss the Petition for Review
as Moot (ECF No. 193) is GRANTED, the Intervenor’s Cross-Motion to Dismiss (ECF No. 37) is
DENIED AS MOOT, Respondents’ Amended Cross-Motion to Dismiss (ECF No. 55) is
DENIED AS MOOT, and the Petition for Review is DISMISSED AS MOOT.

        Petitioners, the Delaware Riverkeeper Network, a non-profit environmental protection
organization, and the Delaware Riverkeeper (jointly, “Petitioners”), seek review of an alleged action
of the New York State Department of Environmental Conservation (“Department”) granting
Intervenor Millennium Pipeline Company, LLC’s (“Millennium”) request for coverage pursuant to
the State Pollutant Discharge Elimination System general permit in connection with the Eastern


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System Upgrade Project. Specifically, Petitioners argue that the Department’s issuance of coverage
under the general permit should be vacated and remanded because the Department was obligated to
provide individualized notice and opportunity to comment on each claim of coverage submitted by
Millennium under the general permit, notwithstanding the fact that the general permit itself was
subject to notice and comment. We assume the parties’ familiarity with the underlying facts,
procedural history of the case, and issues on appeal.

         On April 10, 2019, Millennium, supported by the Department, moved to dismiss the petition
for review as moot on the grounds that the facilities at issue already have been constructed and are
in service. In their response to the motion, Petitioners agreed that there is no construction left, but
argued that the case is not moot because “permanent stabilization has not occurred . . . and . . .
significant restoration, grading, and revegetation activities . . . are also incomplete.” Petitioner’s
Opp’n to Mot. to Dismiss as Moot at 1. Since then, the Department has notified the Court that it
has issued “notices of termination” to Millennium, which “demonstrate that final stabilization of the
project was achieved in August 2019, and that there will be no further construction-related activities
that come within the [Department’s] general permit’s scope.” Department’s Rule 28(j) Letter of
September 12, 2019 at 1–2. Termination was “legally completed” by signature on November 26,
2019. Millennium’s Rule 28(j) Letter of December 10, 2019 at 1, 3.

         “Under Article III of the Constitution, federal courts are empowered to adjudicate only
actual, ongoing cases or controversies.” Deeper Life Christian Fellowship, Inc. v. Sobol, 948 F.2d 79, 81
(2d Cir. 1991). A core element of Article III’s case-or-controversy requirement is that the case
remains “alive at all stages of judicial proceedings” because “[i]f events subsequent to the filing of a
lawsuit resolve the controversy, the case should be dismissed as moot.” Id. “A case is moot if our
decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of
affecting them in the future.” Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 12
(D.C. Cir. 2019) (internal quotation marks and citations omitted).

         In the circumstances presented, we conclude that the petition for review is moot because the
coverage under the general permit that is being challenged is no longer required. As the Department
stated, final stabilization of the project was achieved in August 2019 and termination of coverage is
complete. Accordingly, a rescission of the coverage would not give Petitioners any meaningful
prospective relief for their asserted injuries as a result of the “construction and operation of the
[Upgrade] Project.” Petitioner’s Br. at 6.

         Nor does the petition for review implicate the exception to the doctrine of mootness for
cases that are capable of repetition, yet evading review. Petitioners failed to satisfy their burden of
showing that: (1) the challenged action of granting coverage under a general permit without notice
and comment is “in its duration too short to be fully litigated prior to its cessation or expiration,”
and (2) there is a “reasonable expectation that [Petitioners] will be subject to the same action again.”
Davis v. FEC, 554 U.S. 724, 735 (2008) (citations and internal quotation marks omitted); accord Van

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Wie v. Pataki, 267 F.3d 109, 113 (2d Cir. 2001) (stating that “exception applies only in exceptional
situations”) (internal quotation marks and citation omitted). Not only is the coverage under the
general permit no longer required, but also the underlying general permit, which has been in effect
since 2015, will expire in January 2020. Therefore, the “expectation of repetition” in this case is
nothing more than speculation.

       Because we agree with Millennium and the Department that the petition for review is moot,
we do not address the remaining grounds asserted for dismissal or denial of the petition.

                                          CONCLUSION

      For the foregoing reasons, Millennium’s Motion to Dismiss the Petition for Review as Moot
(ECF No. 193) is GRANTED, Millennium’s Cross-Motion to Dismiss (ECF No. 37) is DENIED
AS MOOT, Respondents’ Amended Cross-Motion to Dismiss (ECF No. 55) is DENIED AS
MOOT, and the Petition for Review is DISMISSED AS MOOT.




                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk of Court




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