North Carolina Utilities Commission v. Federal Energy Regulatory Commission

The Natural Gas Act provides States and State regulatory commissions procedural rights to challenge Federal Energy Regulatory Commission orders in order to protect States’ interests. 15 U.S.C. § 717r(a), (b). This Court’s opinion in Massachusetts v. Environmental Protection Association, 549 U.S. 497, 518-520

1. held that States are entitled to special solicitude in courts’ standing analyses because they are not normal litigants for purposes of invoking federal jurisdiction. While courts of appeals have offered varying views of Massachusetts’ scope, in this case, the District of Columbia Circuit did not address Massachusetts. Instead, it held a State litigant had not demonstrated injury-in-fact and, therefore, lacked standing to challenge Federal Energy Regulatory Commission orders that authorized construction of interstate pipeline facilities that will be located within the State’s borders and that were marketed to serve the State’s ratepayers. The questions presented are:

2. If a court of appeals finds a State litigant failed to demonstrate injury-in-fact that is traceable to the challenged action and redressable by the court, must it separately consider whether the State litigant has standing under Massachusetts to challenge orders by a federal agency that implicate the State’s quasisovereign and parens patriae interests?

3. If a federal statute affords a State litigant procedural rights to challenge agency actions that affect the State’s quasi-sovereign and parens patriae interests, do Massachusetts and Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992) require the State to demonstrate injury-in-fact that is traceable to the (i)