UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: August 2, 1972.
TRANSCONTINENTAL GAS PIPE LINE CORPORATION, A CORPORATION OF THE STATE OF DELAWARE, APPELLEE, PUBLIC SERVICE ELECTRIC & GAS COMPANY AND SOUTH JERSEY GAS COMPANY (PLAINTIFF INTERVENORS),
HACKENSACK MEADOWLANDS DEVELOPMENT COMMISSION, A PUBLIC CORPORATE BODY OF THE STATE OF NEW JERSEY, AND CLAYSON W. FOLEY, APPELLANTS, ET AL.
Adams, Max Rosenn and Hunter, Circuit Judges.
Opinion OF THE COURT
JAMES HUNTER, III, Circuit Judge.
In this appeal, we are faced with the question of the extent to which a state may legitimately interfere with interstate commerce through the exercise of its police powers. In apparent conflict are the State of New Jersey's plans for the controlled development of its "Meadowlands District" and the right of a federally certificated natural gas company to expand its storage facilities on land acquired by it approximately five years before the enactment of the Hackensack Meadowlands Reclamation & Development Act, N.J.S.A. 13:17-1 et seq.
Transcontinental Gas Pipeline Corporation ("Transco"), the appellee, is a natural gas company within the meaning of the Natural Gas Act ("Act"), 15 U.S.C. § 717 et seq.,*fn1 and is thereby vested with various rights and powers as well as concomitant duties and obligations. Pursuant to authorization by the Act and the resulting periodic issuance of Certificates of Public Convenience and Necessity*fn2 by the Federal Power Commission ("FPC"), Transco has constructed and presently maintains an extensive pipeline system which gathers natural gas from onshore and offshore Gulf Coast locations, transports the gas through interstate commerce, and subsequently sells it to various distributors along the East Coast. Approximately seventy-five percent of the total amount of natural gas used in the state of New Jersey is supplied by Transco.
In 1963 Transco purchased from the New Jersey Borough of Carlstadt a five hundred acre tract of barren and undeveloped meadowlands for the purpose of constructing facilities for the processing and storage of Liquified Natural Gas ("LNG"). Subsequently the company acquired from the state, in return for settlement of pending litigation, any interests the state might have under disputed title.*fn3 After the FPC issued the necessary certificates, Transco constructed an LNG plant including an underground storage container. Soon after completion, however, engineering studies determined that the container, as constructed, would be unable to accommodate the full quantity of LNG for which it had been designed. In July of 1968, the FPC issued an amended certificate, authorizing the construction of an above-ground cylindrical storage container. The plant -- including the aboveground container and appurtenant liquification and vaporization facilities -- is presently in full operation.
In January of 1968, pursuant to the enactment of the Hackensack Meadowlands Reclamation and Development Act,*fn4 the Hackensack Meadowlands Development Commission ("Commission"), an autonomous, regional agency was established with the power to "adopt a master plan . . . for the physical development of all lands lying within the [Hackensack Meadowlands] District. . . ."*fn5 As stated in the Act, the area encompasses approximately 21,000 acres of saltwater swamps, meadows and marshes commonly known as "meadowlands" located in the lower Hackensack River Basin.*fn6
The Transco property is located within one of the Commission's "Planning Areas," the company's existing facilities utilizing approximately sixteen acres of its five hundred acre tract.
In the fall of 1969, Transco was notified by its customers that additional LNG service would hence be required, especially during the peak winter season periods. To meet these demands, Transco applied to the FPC for authorization to construct a second above-ground storage facility. The construction would encompass an additional seven acres of the Transco property. As required by law, public notice of the application was published by the FPC and special notice given to the Governor and Public Service Commission of New Jersey. Neither the State, nor the Public Service Commission, nor the Commission petitioned to intervene or participate in any manner in the proceedings before the FPC although a number of Transco's customers were granted permission to intervene in support of the application. After a hearing the certificate was issued on March 12, 1970.
The Hackensack Meadowlands Reclamation and Development Act provides that a building permit must be obtained from the Commission prior to the commencement of any construction on land covered by the Commission's Master Plan.*fn7 After numerous meetings with Transco representatives, the Commission refused to issue the necessary permit, ostensibly on the grounds that the construction and operation of the proposed storage facility was not a "permitted use" under the Master Plan. The Commission concluded that to allow the proposed construction a variance would have to be issued. However, that, too, was denied, the Commission concluding that the construction would "seriously restrict the range of possible uses in the surrounding areas" and that it would "fail to meet applicable planning and safety regulations."*fn8 Nevertheless, after further negotiations, the Commission offered to "reconsider" its position upon the condition that Transco, inter alia, agree to abandon the entire plant by 1980.*fn9 Transco refused, contending that its obligations under the Natural Gas Act prohibited such an agreement.*fn10
On July 22, 1970, Transco filed suit in the District Court to enjoin the Commission from interfering with construction of the facility. The Commission counterclaimed to enjoin commencement of construction. After six days of hearings, the District Court permanently restrained the Commission from interfering with construction of the facility.*fn11 The Commission appeals and we affirm.*fn12
It is well established that the interstate transmission and sale of natural gas is within the regulatory ambit of the Commerce Clause of the Constitution. Commonwealth of Pennsylvania v. State of West Virginia, 262 U.S. 553, 43 S. Ct. 658, 67 L. Ed. 1117 (1923); Federal Power Commission v. National Gas Pipeline Co., 315 U.S. 575, 62 S. Ct. 736, 86 L. Ed. 1037 (1942). Although the states are not precluded from imposing reasonable restraints and restrictions on interstate commerce, and although the authority to enact zoning ordinances under the state's police power is clear, see, e.g., Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926), it is equally settled that a state may not exercise that police power where the necessary effect would be to place a substantial burden on interstate commerce. Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S. Ct. 1515, 89 L. Ed. 1915 (1945).*fn13 We must therefore look to the particular facts presented by this case to determine whether the Commission's complete interdiction*fn14 of the proposed facility was a reasonable exercise of its police powers, or as the District Court determined, an "arbitrary, unreasonable and unjustifiable interference" with interstate commerce.
The Commission initially contends that the District Court's decision must be reversed for its alleged failure to consider adequately the "substantial public benefit" which will accrue to the Meadowlands area by the implementation of the Commission's Master Plan. Specifically, the argument is advanced that in determining whether or not an undue burden has been imposed upon interstate commerce, the District Court did not weigh sufficiently the reasons for the Commission's action. According to appellant, that action was adequately justified by the inherent benefits forthcoming to the area through strict adherence to the Master Plan. Our reading of the record, however, convinces us that the Commission's testimony was taken into consideration and, as indicated in the District Court's opinion, its viewpoint was, in fact, seriously weighed.
The Commission argues that land surrounding the Transco site "has characteristics which will permit the establishment of higher uses than the heavy industrial character to which the proposed LNG facility would commit to the area" and that these planning goals are themselves a sufficient justification for the Commission's interference with interstate commerce. At the hearings and in its briefs to this Court, the Commission stated that these contemplated "higher uses" include the construction of a balanced residential community for 60,000 inhabitants in close proximity to the Transco site. However, the record reveals that if residential communities are in fact being considered, those plans are in the earliest stages of development and apparently thirty years in the future. In fact, it would appear that the only reasonably definitive plans for the development of the land surrounding the Transco site are -- as counsel for Transco has contended without contradiction -- the construction of a 750 acre sports complex consisting of two stadia, a race track, and various adjacent parking facilities. New Jersey Sports and Exposition Authority Law, N.J.S.A. 5:10-1 et seq.; see also New Jersey Sports & Exposition Authority v. McCrane, 61 N.J. 1, 292 A.2d 545 (1972).*fn15 The Sports Authority and the Commission apparently have joint responsibilities over this 750-acre tract.*fn16
Counsel for appellant conceded at oral argument that the Commission's opposition was not directed solely at this proposed facility. Rather, he candidly admitted that appellant was primarily distressed by the prospect of further construction on the Transco property in the future and the Commission's inability to restrict such FPC-certificated construction. Notwithstanding these concerns, we affirm the District Court's conclusion that the Commission's actions were an unlawful interference with interstate commerce. Although we are cognizant of the tremendous importance of sound community and regional planning, see, e.g., E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970), we must also consider the needs of the New York-New Jersey metropolitan area for the adequate and efficient supply and delivery of natural gas. Upon this record and with full consideration of the state's interest in the Meadowland District, we conclude that the District Court's determination characterizing the Commission's action as "arbitrary," and an "unwarranted imposition upon interstate commerce" was correct.
The record reveals that the Commission had not promulgated any set of regulations, standards or criteria applicable to the construction of this type of industrial facility. It nevertheless concluded that the denial of the variance was "based mainly on the lack of conformity with applicable planning regulations and safety considerations."*fn17
In the District Court extensive documentary evidence as well as testimony was presented by Transco, attesting to the safety of the proposed storage container. The Court found as a fact that the relevant Transco plans "conformed to all current building and safety standards." The Commission, however, does not accept this finding, asserts that it is against the weight of the evidence and argues that the District Court should be reversed.
Our standard of review is carefully circumscribed. On appeal, the District Court's findings of fact will not be set aside unless they are "clearly erroneous." F.R.Civ.P., Rule 52(a) Andrews v. Chemical Carriers, Inc., 457 F.2d 636 (3d Cir. 1972); Petition of M & J Tracy Inc., 422 F.2d 929, 931 (3d Cir. 1969).*fn18 After careful consideration, we conclude that none of the pertinent findings of the District Court are "clearly erroneous."
The testimony presented by Transco included that of Dale Hauser, the engineer in charge of the construction of the facility, who in considerable detail testified to the effect that the container met all existing safety regulations including those of the National Fire Protection Association and the American Petroleum Institution. It was uncontroverted that the specifications for the proposed facility not only complied with all existing safety standards relevant to the construction of such a facility but in fact included additional safety features suggested by Transco and the contractor -- Pittsburgh-Des Moines Steel Company. In addition, William M. Nix, an engineer employed with an independent consulting firm, testified that the plans and specifications were "standard for the industry," included all safety factors and devices recognized and used in the industry, met the safety codes of all regulatory authorities and were in accordance with good engineering practices.
The Commission, however, contends that its expert witness, Marvin Salzenstein, presented testimony concerning the "possibility" of gas dispersion from the container, that this testimony was not refuted by Transco and that the District Court was therefore "entirely unjustified" in concluding that the Transco had in fact adequately rebutted Salzenstein's "damaging" testimony. The weight to be given expert testimony is in the province of the trial judge and will not be set aside, unless the "clearly erroneous" standard is met. United States ex rel. Carter Nelson, Inc. v. Campbell, 293 F.2d 816 (9th Cir. 1961); Evans v. United States, 319 F.2d 751 (1st Cir. 1963). We conclude that credible testimony of the Transco witnesses adequately rebutted the Salzenstein testimony and we therefore will not disturb the Court's findings on this point.*fn19
To conclude, not only are the District Court's findings of fact not "clearly erroneous" but our review of the record mandates the conclusion that they are correct.*fn20
The National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4331 et seq., mandates that all executive and administrative agencies give good faith, careful and informed consideration to environmental values during the course of their decision making processes. See, e.g., Pennsylvania Environmental Council v. Bartlett, 454 F.2d 613 (3d Cir. 1971); Calvert Cliffs' Co-ordinating Committee v. United States Atomic Energy Commission, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971).*fn21
Section 102, 42 U.S.C. § 4332, contains the procedural provisions of NEPA. Of particular import to the present action is Subsection (C) which requires that to "the fullest extent possible" all federal agencies shall include a detailed environmental impact statement in "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. . . ."*fn22
This Court has held that NEPA should not be given retroactive application. Pennsylvania Environmental Council v. Bartlett, supra ; Concerned Citizens of Marlboro v. Volpe, 459 F.2d 332 (3d Cir. 1972). We have not as yet been called upon, however, to decide whether strict compliance with NEPA is mandated immediately as of January 1, 1970, when NEPA first became effective. We conclude that in the particular circumstances of this case, the FPC was not required to file a Section 102 impact statement.
Section 4333 directs all Federal agencies to:
"review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of this chapter and shall propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this chapter."
The facts of this case demonstrate clearly why a flexible approach to NEPA should be taken. It is undisputed that Transco submitted its application for certification in December of 1969, that the stated "effective date" of NEPA was January 1, 1970 and that the FPC certificate was issued on March 12, 1970. Neither the FPC nor the Council on Environmental Quality ("CEQ") had as yet promulgated any guidelines whatsoever, the CEQ's Interim Guidelines only being issued on April 23, 1970, 35 Fed.Reg. 7390. The FPC's guidelines were issued on December 4, 1970. 35 Fed.Reg. 18958.*fn23 Thus, in January and February of 1970, it was questionable whether the granting of a certificate or other entitlement for use was even an "action" within the meaning of Section 102(c), much less a " major federal action." It was not until the publication of the CEQ Interim Guidelines on April 30, 1970 -- a month after the certificate was issued -- that the former question was resolved.*fn24 Whether a project is a "major federal action" is, of course, a question which can only be resolved through a careful case-by-case analysis. Taking into consideration the facts that the Transco LNG facility had been in operation for a considerable period, that this was an expansion of an existing facility, that there was no expenditure of any federal funds, and that there was no taking of any public lands, it is quite reasonable for the FPC to have concluded -- in the absence of any indication to the contrary -- that this was not the sort of federal "action" that required a Section 102 impact statement. It is important to note that the approval of the construction of the facility in question is certainly not the type of "action" which most reasonable men would conclude, without any guidelines, to be either "major" or even an "action." Cf. Calvert Cliffs', supra. We therefore conclude that the failure of the FPC to prepare an impact statement does not invalidate the issuance of the certificate.
The order of the District Court will be affirmed.