D.C. Circuit Rules That Conditional Certificate Order Did Not Authorize Discharges Under Clean Water Act

On May 23, 2017, the U.S. Court of Appeals for the D.C. Circuit ("D.C. Circuit") held that FERC did not violate the Clean Water Act ("CWA") by issuing Transcontinental Gas Pipe Line Company, LLC ("Transco") a certificate of public convenience and necessity ("CPCN") before the state of Pennsylvania had issued a CWA § 401 water quality certification that must be obtained by a CPCN applicant prior to FERC approving any activity that may result in a discharge into navigable waters.  In doing so, the D.C. Circuit held that FERC's issuance of a CPCN did not violate the CWA because FERC's CPCN order expressly conditioned FERC's approval of potential discharge activity on Transco first obtaining the requisite CWA § 401 certification and because the CPCN itself does not authorize any potential discharge activity.