Ineos USA LLC v. Federal Energy Regulatory Commission and United States of America

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2019 Decided October 18, 2019
No. 18-1081
INEOS USA LLC,
P ETITIONER
v.
FEDERAL ENERGY R EGULATORY C OMMISSION AND UNITED
S TATES OF AMERICA,
R ESPONDENTS
LEVERET P IPELINE C OMPANY , LLC AND M ID-A MERICA
P IPELINE C OMPANY , LLC,
INTERVENORS
Consolidated with 18-1200
On Petitions for Review of Orders of
the Federal Energy Regulatory Commission
Richard B. Phillips Jr. argued the cause for petitioner. On
the brief were Victoria M. Lauterbach and Wendy B. Warren.
Sidney Fowler entered an appearance.
Robert M. Kennedy Jr., Senior Attorney, Federal Energy
Regulatory Commission, argued the cause for respondents.
With him on the brief were Michael F. Murray, Deputy

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Assistant Attorney General, U.S. Department of Justice, Robert
B. Nicholson and Robert J. Wiggers, Attorneys, James P.
Danly, General Counsel, Federal Energy Regulatory
Commission, and Robert H. Solomon, Solicitor.
Charles F. Caldwell and Elizabeth B. Kohlhausen were on
the brief for intervenors Leveret Pipeline Company, LLC, et al.
in support of respondents.
Before: R OGERS and WILKINS , Circuit Judges, and
R ANDOLPH , Senior Circuit Judge.
Opinion for the Court filed P ER C URIAM.
Concurring opinion filed by Circuit Judge R OGERS .
P ER C URIAM: INEOS USA LLC (“INEOS”), a chemical
producer, petitions for review of the decision of the Federal
Energy Regulatory Commission to accept tariff filings without
an investigation pursuant to Section 15(7) of the Interstate
Commerce Act (“ICA”), 49 U.S.C. app. § 15(7) (1988).
INEOS wishes to connect its fractionator to the South Eddy
Lateral, a natural gas liquids pipeline. Ownership of the South
Eddy Lateral recently changed hands from Mid-America
Pipeline Company, LLC (“Mid-America”), to Leveret Pipeline
Company LLC (“Leveret”), both subsidiaries of Enterprise
Products Partners L.P. (“Enterprise”). Mid-America and
Leveret filed tariffs with the Commission reflecting the transfer
of ownership. INEOS protested the tariff filings and argued
that the transfer was intended to deny INEOS’ access to the
South Eddy Lateral and, more generally, to unduly discriminate
in favor of Enterprise affiliates at the expense of third-party
shippers. INEOS requested the Commission reject the filings
or, alternatively, suspend them and investigate the ownership
change. The Commission denied INEOS’ protest and accepted

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the tariff filings without investigation. INEOS now seeks
judicial review, and the Commission responds that the court
lacks jurisdiction. Because INEOS failed to establish Article
III standing, we dismiss the petitions for lack of jurisdiction.
I.
In March 2017, INEOS sent Mid-America a written
request to connect its fractionator to the South Eddy Lateral,
which Mid-America then owned. While the connection request
was pending, Leveret gained ownership of the South Eddy
Lateral, and Mid-America and Leveret filed with the
Commission cancellation and adoption tariffs, respectively.
INEOS protested the tariff filings, arguing that the transfer
of ownership was intended to thwart its pending connection
request. INEOS requested the Commission summarily reject
the filings or suspend them for the maximum statutory seven-
month period and hold a hearing. Leveret and Mid-America
filed a joint answer to the protest, arguing that INEOS lacked
standing as to abandonment of one route and the Commission
lacked jurisdiction of the transfer of ownership. Leveret and
Mid-America also denied that the transfer was intended to limit
access to the South Eddy Lateral and stated that Leveret was
still considering INEOS’ connection request.
At the time of the tariff filings and protest, the Commission
lacked a quorum and had delegated authority to Commission
staff. Pursuant to this authority, Commission staff accepted
Leveret and Mid-America’s proposed tariffs for filing, subject
to refund and further Commission order. Leveret Pipeline Co.
LLC, Order Accepting and Suspending Filings, Subject to
Refund, and Further Commission Order (“Staff Order”), 160
FERC ¶ 62,020, at P 5 (2017). INEOS petitioned for rehearing.
Having regained its quorum, the Commission then denied

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INEOS’ rehearing request and accepted Leveret and Mid-
America’s tariff filings, to become effective on their proposed
effective dates. Leveret Pipeline Co. LLC, Order on Tariff
Filings and Denying Rehearing (“Commission Order I”), 162
FERC ¶ 61,038, at PP 4-5 (2018). The Commission stated that
it lacked jurisdiction of pipeline service abandonments and
therefore could not grant INEOS’ request to suspend the
cancellation tariffs. Id. at P 14 (citing ARCO Pipe Line Co., 55
FERC ¶ 61,420 (1991)); see also Farmers Union Cent. Exch.
v. FERC, 734 F.2d 1486, 1509 n.51 (D.C. Cir. 1984). It also
stated that the adoption tariffs involved purely administrative
exercises, because Leveret would offer the same transportation
service at the same rates as Mid-America previously offered.
Commission Order I at P 15. Therefore, the Commission
declined to suspend the tariffs and order a hearing. Id. at P 17.
INEOS again petitioned for rehearing. The Commission
denied the petition, which it found procedurally improper as a
successive petition. Leveret Pipeline Co. LLC, Order Denying
Rehearing (“Commission Order II”), 163 FERC ¶ 61,180, at
PP 13-15 (2018). The Commission also stated that even if the
petition were procedurally proper, there was no reason to
suspend the tariffs and order a hearing, because the
Commission had found “no evidence that Mid-America and
Leveret’s actions were unduly beneficial to affiliates.” Id. at
PP 23, 30.
INEOS petitioned this court for review of the Staff Order,
Commission Order I, and Commission Order II, and the
Commission filed a motion to dismiss on the ground that the
court lacks jurisdiction. A special panel of the court referred
the motion to a merits panel. Per Curiam Order, INEOS USA
LLC v. FERC, Nos. 18-1081, 18-1200 (D.C. Cir. Nov. 14,
2018).

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II.
In petitioning for review, INEOS chiefly contends that the
court has jurisdiction to review the Commission’s
determination that it lacked jurisdiction of Mid-America’s
abandonment of service. The Commission responds that the
court lacks jurisdiction to address INEOS’ petitions for three
reasons: its acceptance of the protested tariff filings without an
investigation is not subject to judicial review; INEOS lacks
standing to challenge the acceptance of the filings; and INEOS’
petitions are untimely.
Federal courts are courts of limited jurisdiction and
“possess only the power authorized by the Constitution and by
statute.” Jarkesy v. SEC, 803 F.3d 9, 15 (D.C. Cir. 2015)
(citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994)). As the party seeking review, INEOS bears
the burden of establishing it has Article III standing. See NO
Gas Pipeline v. FERC, 756 F.3d 764, 767 (D.C. Cir. 2014).
The “irreducible constitutional minimum” of standing requires
INEOS to show that it has suffered an injury in fact, caused by
the Commission’s challenged decision, which a favorable
decision of the court is likely to redress. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992). The injury must be
concrete and particularized, and actual or imminent, as opposed
to merely conjectural or hypothetical. Id. at 560. “[W]hen the
plaintiff is not . . . the object of the government action or
inaction [the plaintiff] challenges,” as is true here, “standing is
not precluded, but it is ordinarily ‘substantially more difficult’
to establish.” Id. at 562.
On the record before the court, it appears INEOS has not
established Article III standing. See Kansas Corp. Comm’n v.
FERC, 881 F.3d 924, 929–31 (D.C. Cir. 2018). Although the
court must assume the truth of INEOS’ factual allegations

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regarding standing, see City of Boston Delegation v. FERC,
897 F.3d 241, 250 (D.C. Cir. 2018), “allegations that are really
predictions” may be rejected as overly speculative, see Arpaio
v. Obama, 797 F.3d 11, 21 (D.C. Cir. 2015). Even affording a
generous interpretation to its allegations, INEOS fails to show
that it has suffered an injury in fact that is fairly traceable to the
challenged Commission decision. See Kansas Corp. Comm’n,
881 F.3d at 929–31.
INEOS’ claim of competitive injury from denial of access
to the South Eddy Lateral is too speculative to support
standing. As INEOS acknowledges, Leveret has not yet
accepted or denied its connection request. Therefore, INEOS’
allegation of injury from denial of access is a mere
“prediction[]” that Leveret ultimately will deny its pending
request. See Arpaio, 797 F.3d at 21.
INEOS also alleges that it has suffered “delay” in access
to the South Eddy Lateral as a result of the transfer of
ownership from Mid-America to Leveret. Pet’r’s Reply Br. 4–
5. But INEOS failed to make this argument in its Opening
Brief, and arguments made for the first time in a Reply Brief
are generally forfeited. See, e.g., United States v. Wilson, 605
F.3d 985, 1035 (D.C. Cir. 2010). Even if this allegation were
properly before the court, INEOS has not established that it
would have received access to the South Eddy Lateral more
quickly absent the transfer of ownership. Leveret stated it is
investigating operational and engineering issues related to the
connection request, and INEOS did not rebut this with evidence
or argument.
For similar reasons, INEOS also fails to demonstrate that
the harm it has allegedly suffered is fairly traceable to the
Commission’s acceptance of the protested tariff filings. It is
undisputed that the Commission lacks authority over INEOS’

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request to connect its fractionator to Leveret’s pipeline, and
INEOS has stated that its petition for review challenges solely
“the cancellation of Mid-America’s service from South Eddy
and Leveret’s adoption of that service.” Pet’r’s Reply Br. 13.
Therefore, to establish causation, INEOS must demonstrate
that the transfer of ownership caused harm it has suffered from
not yet receiving a connection to the pipeline. INEOS’ claim
that the transfer “aided” Leveret’s denial of access to the South
Eddy Lateral, Pet’r’s Br. 20, lacks record support and is thus
speculative. In sum, INEOS has not established that its claimed
injury was caused by “acts of the [respondent], not of some
absent third party,” such as Enterprise or its affiliates. See
Common Cause v. Biden, 748 F.3d 1280, 1284 (D.C. Cir.
2014).
Finally, INEOS contends that the Commission’s
determination that it lacked jurisdiction of certain protested
tariff filings “denied INEOS the opportunity to challenge Mid-
America’s disposition of the South Eddy Lateral as an exercise
of undue discrimination and affiliate abuse.” Pet’r’s Br. 20.
Yet the ICA requires both Leveret and Mid-America to grant
reasonable requests to provide service, and INEOS is free to
file a Section 13(1) complaint challenging either company’s
conduct as unreasonable. See ICA §§ 1(4), 13(1). Moreover,
the Commission found in the alternative that “no evidence”
supported INEOS’ claim of undue discrimination in favor of
Enterprise affiliates. Commission Order II at P 23. This
finding is unrebutted in the record before the court.
Because INEOS has not established Article III standing to
challenge the Commission’s decision to accept Mid-America
and Leveret’s tariff filings without an investigation, its
petitions must be dismissed for lack of jurisdiction.

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R OGERS , Circuit Judge, concurring: Any concern that a
dismissal for lack of Article III standing appears harsh in view
of INEOS’ efforts to gain access to the South Eddy Lateral
pipeline for over thirty months is eliminated here because
Section 15(7) of the Interstate Commerce Act (“ICA”)
precludes judicial review of the decision INEOS seeks to
challenge. During oral argument, counsel for INEOS
suggested that INEOS’ success in gaining access rested on its
obtaining “more information” about the transfer of ownership,
which it could obtain only through an investigation by the
Commission of its claim of undue discrimination against non-
affiliate shippers. Oral Arg. Tape at 13:19–13:22 (Sept. 10,
2019). To the extent INEOS might have established standing
with such evidence, this court’s inability to review the
Commission’s decision not to investigate the tariff filings
protested by INEOS fully responds to INEOS’ petitions.
Under Steel Co. v. Citizens for a Better Environment, 523
U.S. 83 (1998), and its progeny, courts may address the issues
of Article III standing and judicial reviewability in either order.
Although courts may not assume “hypothetical jurisdiction” to
proceed to the merits of a case, id. at 94, courts may address
non-Article III “threshold questions,” including rules
“designed not merely to defeat the asserted claims, but to
preclude judicial inquiry,” before addressing Article III
jurisdiction, Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005). This court
has consistently accepted this understanding of Steel Co. See,
e.g., Kaplan v. Cent. Bank of the Islamic Republic of Iran, 896
F.3d 501, 513 (D.C. Cir. 2018); Pub. Citizen v. U.S. Dist. Court
for D.C., 486 F.3d 1342, 1348–49 (D.C. Cir. 2007); United
States ex rel. Long v. SCS Bus. & Tech. Inst., Inc., 173 F.3d
890, 893 (D.C. Cir. 1999). Because the question whether an
agency decision is subject to judicial review is a paradigmatic
threshold question, the court is not required to ensure it has
Article III jurisdiction before addressing it.

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In Southern Railway Co. v. Seaboard Allied Mining Corp.,
442 U.S. 444, 447–48 (1979), the Supreme Court held that the
Interstate Commerce Commission’s decision not to investigate
a rate increase under ICA Section 15(8)(a) is not reviewable.
The Court explained that a decision declining to investigate is
a discretionary decision not to investigate at this time, rather
than a final decision that a tariff is lawful. Id. at 452. Section
15(8) is derivative of Section 15(7), and this court applied
Southern Railway to Section 15(7) in Resolute Natural
Resources Co. v. FERC, 596 F.3d 840 (D.C. Cir. 2010). In
Resolute, 596 F.3d at 841, this court held that the ICA
precludes judicial review of decisions by the Commission
declining to investigate allegedly anticompetitive conduct
under Section 15(7). In other words, Congress granted the
Commission unreviewable authority to determine whether to
initiate a Section 15 investigation and whether to suspend
challenged tariffs. Arctic Slope Reg’l Corp. v. FERC, 832 F.2d
158, 164–65 (D.C. Cir. 1987).
Although Section 15(7) does not permit judicial review,
the ICA does provide for a judicial remedy through the Section
13(1) complaint procedure. As the Supreme Court explained
in Southern Railway, 442 U.S. at 454, a shipper may require
the Commission at any time to investigate the lawfulness of a
rate – and may secure judicial review of any decision not to do
so – by filing a Section 13(1) complaint. See also Frontier
Pipeline Co. v. FERC, 452 F.3d 774, 776 (D.C. Cir. 2006);
Exxon Pipeline Co. v. United States, 725 F.2d 1467, 1478 n. 7
(D.C. Cir. 1984) (Wright, J., concurring). INEOS remains free
to file such a complaint, alleging that Leveret has unreasonably
denied its access to the South Eddy Lateral. That could result
in both a final decision on the lawfulness of the challenged
tariffs and judicial review of that decision. Indeed, counsel for
INEOS acknowledged during oral argument that INEOS had

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never disputed that the Section 13(1) complaint process was
available. Oral Arg. Tape at 16:22–16:46.
Nonetheless, INEOS maintains that the court has
jurisdiction of its petitions because the Commission’s
statement that it lacked jurisdiction of Mid-America’s partial
abandonment of service is erroneous as a matter of law. The
exception that INEOS invokes is foreclosed by this court’s
precedent. In Resolute, 596 F.3d at 841–42, the court held that
the Commission’s decision to reject a protest was not
reviewable, even though the Commission had declined to
investigate in part because it concluded that the allegations of
anticompetitive conduct were beyond the Commission’s
jurisdiction.
Similarly, to the extent INEOS maintains that the court has
jurisdiction to review whether the Commission’s acceptance of
the tariff filings, as distinct from its decision not to order a
hearing, was arbitrary and capricious, this is at odds with this
court’s precedent. The decision to accept a rate filing is part of
the decision not to investigate or to suspend a tariff. “It would
make little sense to declare orders concerning suspension and
investigation unreviewable if the courts may review the related
order to accept a rate filing.” Papago Tribal Util. Auth. v.
FERC, 628 F.2d 235, 243 (D.C. Cir. 1980); see also Aberdeen
& Rockfish R.R. Co. v. United States, 664 F.2d 41, 43 (5th Cir.
1981).
The cases on which INEOS relies are not to the contrary,
because they involved a final decision of the Commission or
another administrative body. Here, by contrast, the
Commission exercised its discretion not to investigate the
challenged tariffs and therefore has not yet made a final
decision as to their lawfulness. For the proposition that
“certain aspects of ICA section 15(7) are subject to judicial

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review,” Pet’r’s Br. 26, INEOS cites Ass’n of Oil Pipe Lines v.
FERC, 83 F.3d 1424, 1444 (D.C. Cir. 1996). In that case,
however, the court discussed the availability of judicial review
once the Commission’s investigation under Section 15(7) had
resulted in a final decision. See also S. Ry. Co., 442 U.S. at
452. Similarly, other cases INEOS cites to suggest that the
court may review the Commission’s determination that it
lacked jurisdiction of Mid-America’s abandonment of service
involved review of final decisions. See Pet’r’s Br. 27; Shell Oil
Co. v. FERC, 47 F.3d 1186, 1200 (D.C. Cir. 1995); Int’l Bhd.
of Elec. Workers v. ICC, 862 F.2d 330, 332 (D.C. Cir. 1988);
Office of Consumers’ Counsel v. FERC, 655 F.2d 1132, 1141–
42 (D.C. Cir. 1980). In the one exception, Earth Resources Co.
of Alaska v. FERC, 628 F.2d 234, 235 (D.C. Cir. 1980), the
court held it lacked jurisdiction because there was no
reviewable final order.
It is true that in Resolute, 596 F.3d at 842, the court
identified two possible circumstances in which judicial review
of a Commission decision under Section 15 may be available,
but neither potential exception applies here. First, INEOS has
not shown that the Commission overstepped the bounds of its
statutory authority in accepting the tariff filings without
investigation. See id. Second, the Commission’s reasons for
rejecting the protests here provide no basis for reviewability, as
the Commission is not required under Section 15(7) to explain
its discretionary decision to accept a tariff filing without
investigation. See id.
There is yet another reason why the Southern Railway rule
permits few, if any, exceptions. In Heckler v. Chaney, 470 U.S.
821, 833 n.4 (1985), the Supreme Court left open the
possibility that where an agency action is committed to agency
discretion by law, and the agency declines “to institute
proceedings based solely on the belief that it lacks

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jurisdiction,” that decision may be subject to judicial review.
This court recognized such an exception in International
Longshoremen’s Ass’n v. National Mediation Board, 785 F.2d
1098, 1100–01 (D.C. Cir. 1986). See also Patent Office Prof’l
Ass’n v. FLRA, 128 F.3d 751, 753 n.1 (D.C. Cir. 1997). But
this exception is limited to agency actions committed to agency
discretion by law, which are merely “presumptively
unreviewable.” Heckler v. Chaney, 470 U.S. at 832. By
contrast, “Congress intended to preclude judicial review” of
decisions not to investigate under Section 15 of the ICA. Id. at
828–29 (citing S. Ry. Co., 442 U.S. 444).
Accordingly, INEOS’ petitions must be dismissed for lack
of jurisdiction.

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