USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 1 of 16

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SIERRA CLUB, APPALACHIAN VOICES, )

INDIAN CREEK WATERSHED )
ASSOCIATION, PRESERVE CRAIG, )
SAVE MONROE, AND WILD VIRGINIA )
)
Petitioners, )
)
v. ) No. 21-1040
) (consolidated with 20-1512)
FEDERAL ENERGY REGULATORY )
COMMISSION, )
)
Respondent. )
_________________________________________)

MOTION OF PUBLIC SERVICE COMPANY OF NORTH CAROLINA

FOR LEAVE TO INTERVENE AS A PARTY RESPONDENT

Under Federal Rules of Appellate Procedure 15(d) and 27 and this Court’s

local rules, the Public Service Company of North Carolina, Incorporated, d/b/a

Dominion Energy North Carolina (“PSNC”), moves to intervene in the above-

captioned proceeding as a party respondent. 1

1
PSNC recognizes that the Court has issued a scheduling order regarding
Petitioners’ emergency motion for a stay pending judicial review and will abide by
that schedule if its motion is granted. It does not intend to seek permission to file a
separate brief from other Intervenors-Respondents.
1
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 2 of 16

I. Background

PSNC is a South Carolina corporation with its principal place of business in

Gastonia, North Carolina. It operates a natural gas pipeline system for the

transportation, distribution, and sale of gas within a service territory covering all or

part of 28 North Carolina counties. Regulated by the North Carolina Utilities

Commission, PSNC currently serves approximately 600,000 customers, including

residential, commercial, and industrial demand.

In Mountain Valley Pipeline, LLC, Order Partially Lifting Stop Work Orders

and Allowing Certain Construction to Resume, 173 FERC ¶ 61,252 (Dec. 17, 2020)

(“December Construction Order”), the Commission authorized Mountain Valley

Pipeline, LLC (“MVP”) to resume construction on parts of a 300-mile natural gas

pipeline originally approved by the Commission in Mountain Valley Pipeline, LLC,

161 FERC ¶ 61,043 (2017) (“Certificate Order”). The portions to be resumed are

parts of MVP’s Mainline System, which will connect with MVP’s Southgate Project.

Specifically, the Southgate Project would extend the Mainline with 75 miles of new

pipeline capable of carrying 375,000 dekatherms per day of natural gas to the local

distribution facilities of movant PSNC. Mountain Valley Pipeline, LLC, Order

Issuing Certificate (“Southgate Order”), 171 FERC ¶ 61,232 (2020).

To meet its customers’ growing demand for natural gas, and head off a

projected shortfall in its supply, PSNC has subscribed to 250,000 dekatherms per

2
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 3 of 16

day of transportation capacity on the Mainline. PSNC has also entered into a

precedent agreement with MVP for 300,000 dekatherms per day of firm

transportation service on the Southgate Project, or 80% of the project capacity. See

id. at 3. The agreement requires PSNC to make a 20-year commitment to pay for

such firm transportation service. Id. The Southgate Project will draw from, and

depends on, the Mainline System at issue in the December Construction Order.

When Petitioners sought rehearing of the December Construction Order, the

Commission issued a Notice of Denial of Rehearing by Operation of Law and

Providing for Further Consideration, 174 FERC ¶ 62,0366 (Jan. 19, 2021)

(“Rehearing Order”). Petitioners seek review of both the December Construction

Order and the Rehearing Order. PSNC now moves to intervene as of right.

II. Argument

Under Rule 15(d) of the Federal Rules of Appellate Procedure, a party moving

to intervene in a petition to review agency action must do so “within 30 days after

the petition for review is filed,” and its motion “must contain a concise statement of

[its] interest . . . and the grounds for intervention.” The “interest” test is not unduly

restrictive but rather “is primarily a practical guide to disposing of lawsuits by

involving as many apparently concerned persons as is compatible with efficiency

and due process.” Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967).

3
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 4 of 16

A. PSNC Has Standing To Intervene.

This Court has at times required would-be intervenors to establish their own

Article III standing. Deutsche Bank Nat’l Trust Co. v. FDIC, 717 F.3d 189, 193

(D.C. Cir. 2013). But the Supreme Court has recently clarified that intervenors need

do so only when they seek relief “broader than or different from” the relief sought

by “the party invoking a court’s jurisdiction.” Little Sisters of the Poor Saints Peter

& Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2379 n.6 (2020). Here PSNC will

seek nothing but what the Commission seeks and what Petitioners oppose: dismissal

or denial of the petition challenging the orders at issue.

In any case, PSNC’s showing on the criteria for intervention as of right,

discussed below, suffices to establish its Article III standing as well. “It is axiomatic

that Article III requires a showing of injury-in-fact, causation, and redressability.”

Deutsche Bank, 717 F.3d at 193. PSNC’s financial stake in maintenance of the

Commission’s orders—which gives it enough of a stake in the outcome to justify

intervention, as explained below, see infra Part II.B—also gives PSNC a legally

cognizable interest for standing purposes, see Fund for Animal, Inc. v. Nortons, 322

F.3d 728, 735 (D.C. Cir. 2003) (showing for Article III injury-in-fact is coextensive

with showing for legally protected interest for purpose of intervention as of right).

Likewise, since the relief that Petitioners seek would harm PSNC’s financial

interests, granting that relief would “cause [PSNC] injury,” and a “judgment

4
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 5 of 16

preventing” the relief would “redress” (or prevent) any injury. Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561–62 (1992).

B. PSNC Satisfies the Criteria for Intervention.

Besides standing, PSNC has valid grounds for intervening. The Federal Rules

of Appellate Procedure establish no specific criteria for intervention, but this Court

has held that “intervention in the court of appeals is governed by the same standards

as in the district court” under Federal Rule of Civil Procedure 24. Massachusetts

Sch. of Law at Andover, Inc. v. United States, 118 F.3d 776, 779 (D.C. Cir. 1997)

(citation omitted). Under that Rule, parties may intervene as of right, “upon timely

application,” if they claim “an interest relating to the property or transaction” at stake

and if the outcome “may as a practical matter impair” their ability to protect that

interest, “unless the applicant’s interest is adequately represented by existing

parties.” Fed. R. Civ. P. 24(a)(2). This Court has thus identified four conditions for

intervention as of right: “(1) the application to intervene must be timely; (2) the

applicant must demonstrate a legally protected interest in the action; (3) the action

must threaten to impair that interest; and (4) no party to the action can be an adequate

representative of the applicant’s interests.” Karsner v. Lothian, 532 F.3d 876, 885

(D.C. Cir. 2008) (citation omitted). PSNC meets all four criteria.

5
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 6 of 16

1. Timeliness

PSNC satisfies the first factor because this motion to intervene is timely. It

has been filed within 30 days of the filing of the petition for review, as required by

Federal Rule of Appellate Procedure 15(d).

2. Possible Impairment to Legally Protected Interest

PSNC also satisfies the second and third factors: a legally protected interest

that would be impaired by an adverse decision. This Court will recognize a legally

protected interest and threat of impairment “where a party benefits from agency

action, the action is then challenged in court, and an unfavorable decision would

remove the party’s benefit.” Crossroads Grassroots Policy Strategies v. FEC, 788

F.3d 312, 317, 320 (D.C. Cir. 2015). In such cases, this Court has freely allowed

intervention. For example,

[i]n Fund For Animals, [Inc. v. Norton, 322 F.3d 728, 735
(2003)], the Natural Resources Department of the Ministry
of Nature and Environment of Mongolia (“NRD”) sought
to intervene as a defendant in a suit challenging action by
the Fish and Wildlife Service (“FWS”). 322 F.3d at 730.
The Fund for Animals challenged FWS’ failure to classify
argali sheep as an endangered species. NRD sought to
intervene as a defendant, alleging that, if the district court
overturned the Secretary’s order and argali sheep were
declared endangered species, Mongolia would lose tourist
dollars associated with sheep hunting and a consequent
reduction in funding for its conservation program. Id. at
733. We found NRD’s “threatened loss of tourist dollars”
and the “consequent reduction in funding for Mongolia’s
conservation program” constituted a “concrete and
imminent injury.” Id.
6
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 7 of 16

Crossroads, 788 F.3d at 317. In other words, because the EPA’s refusal to protect

a certain species enhanced a certain country’s appeal to hunters, the EPA’s

protection of the species would have deprived that country of tourism revenue,

which would have lowered its funding for conservation efforts. This attenuated

causal chain sufficed to give the country’s environmental ministry a concrete interest

in defending the EPA’s inaction for purposes of intervention.

Here the causal connection is far more direct: the completion of the Mainline

System is essential for PSNC to obtain needed natural gas to supply its customers.

PSNC has contracted to use 250,000 dekatherms per day of Mainline transportation

capacity itself. But PSNC also plans to meet customers’ needs through the Southgate

Project, which depends on the Mainline. Indeed, it has committed to use 80% of the

Southgate Project’s capacity for natural gas transportation—300,000 dekatherms per

day—for an initial term of 20 years. See Certificate Order at 9–10. The Southgate

Project also will benefit customers by giving PSNC additional options to select cost-

effective supply sources. See id. at 10. Thus, the fact that the Southgate Project

depends on the Mainline System (of which Southgate is an extension) only

reinforces PSNC’s direct interest in the Mainline. Both projects give PSNC a

financial stake concrete and particularized enough to establish a legally protected

interest, for intervention purposes, in the Mainline System’s completion—and thus

in the defense of the orders at issue here, without which the Mainline’s completion
7
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 8 of 16

would be legally impossible. For several reasons, then, PSNC has a legally protected

interest that could be impaired by the outcome of this review proceeding.

3. Lack of Assured Adequate Representation

Finally, the fourth factor, inadequacy of representation of the party’s interests,

is satisfied. While there may be no right to intervene if the movant’s interest is

“adequately represent[e]d” by existing parties, Fed. R. Civ. P. 24(a)(2), a movant

need only show “that representation of his interest” by the other parties “‘may be’

inadequate,” Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n.10

(1972) (emphasis added). And “the burden of making that showing should be treated

as minimal,” id., “not onerous,” Fund for Animals, 322 F.3d at 735 (internal citation

omitted). Mere “general agreement” between an existing party’s positions and those

of a would-be intervenor is not enough to ensure adequate representation. Id. at 737.

In particular, this Court “look[s] skeptically on government entities serving as

adequate advocates for private parties.” Crossroads, 788 F.3d at 321. Above all,

“this circuit recognize[s] the inadequacy of governmental representation of the

interests of private parties” where the private parties have a financial stake in an

outcome but the government does not. Dimond v. District of Columbia, 792 F.2d

179, 192 (D.C. Cir. 1986). For while governmental entities are “charged by law with

representing the public interest of [the] citizens,” private corporations are “seeking

to protect more narrow and ‘parochial’ financial interest not shared by the citizens.”

8
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 9 of 16

Id. at 192–93. Under such circumstances, “no presumption exists that the

[government] will adequately represent” the private party’s interests. Id. at 193.

That is the case here. As a private corporation that buys natural gas for sale

and distribution to consumers, PSNC stands to gain financially from the increased

capacity and efficiencies promised by the Mountain Valley Pipeline. The

Commission does not. This suffices to rebut any suggestion that the Commission

could adequately represent PSNC’s interests.

CONCLUSION

For the foregoing reasons, PSNC respectfully asks this Court to grant its

motion to intervene as party respondent in the above-captioned appeal.

Dated: February 3, 2021 Respectfully submitted,

/s/ Charlotte Taylor

Charlotte Taylor
Sherif Girgis
JONES DAY
51 Louisiana Ave. NW
Washington, DC 20001
Telephone: (202) 879-3939
[email protected]
[email protected]

James Olson
JONES DAY
717 Texas St. #3300
Houston, TX 77002
Telephone: (832) 239-3939
[email protected]

9
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 10 of 16

B. Craig Collins
Dominion Energy Services, Inc.
Mail Code C222
220 Operation Way
Cayce, South Carolina 29033-2701
Telephone: (803) 217-7513
[email protected]

Attorneys for Public Service Company of

North Carolina, Incorporated

10
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 11 of 16

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SIERRA CLUB, APPALACHIAN VOICES, )

INDIAN CREEK WATERSHED )
ASSOCIATION, PRESERVE CRAIG, )
SAVE MONROE, AND WILD VIRGINIA )
)
Petitioners, )
)
v. ) No. 21-1040
) (consolidated with 20-1512)
FEDERAL ENERGY REGULATORY )
COMMISSION, )
)
Respondent. )
_________________________________________)

CERTIFICATE OF COMPLIANCE

This motion complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and type-style requirements of Fed. R. App. P. 32(a)(6) because this motion

has been prepared in 14-point Times New Roman font using Microsoft Word.

This motion complies with the word-count limitation of Fed. R. App. P.

27(d)(2) because this motion contains 1,864 words.

Dated: February 3, 2021 Respectfully submitted,

s/ Charlotte Taylor
Charlotte Taylor
JONES DAY
51 Louisiana Ave. NW
Washington, DC 20001

1
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 12 of 16

Telephone: (202) 879-3939

[email protected]

2
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 13 of 16

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SIERRA CLUB, APPALACHIAN VOICES, )

INDIAN CREEK WATERSHED )
ASSOCIATION, PRESERVE CRAIG, )
SAVE MONROE, AND WILD VIRGINIA )
)
Petitioners, )
)
v. ) No. 21-1040
) (consolidated with 20-1512)
FEDERAL ENERGY REGULATORY )
COMMISSION, )
)
Respondent. )
_________________________________________)

CORPORATE DISCLOSURE STATEMENT OF

PUBLIC SERVICE COMPANY OF NORTH CAROLINA

Pursuant to Federal Rule of Appellate Procedure 26.1 and D.C. Circuit Rule

26.1, Public Service Company of North Carolina, Incorporated, d/b/a Dominion

Energy North Carolina, makes the following disclosures:

Public Service Company of North Carolina, Incorporated, is an energy

company incorporated in South Carolina, with its principal place of business in

Gastonia, North Carolina. It operates a natural gas pipeline system for the

transportation, distribution, and sale of gas within a service territory covering parts

of North Carolina.
1
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 14 of 16

Public Service Company of North Carolina, Incorporated, is a wholly owned

subsidiary of SCANA Corporation, which is wholly owned by Dominion Energy,

Inc. No publicly held corporation owns more than 10% of the stock of Dominion

Energy, Inc.

Dated: February 3, 2021 Respectfully submitted,

s/ Charlotte Taylor
Charlotte Taylor
JONES DAY
51 Louisiana Ave. NW
Washington, DC 20001
Telephone: (832) 239-3866
[email protected]

2
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 15 of 16

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SIERRA CLUB, APPALACHIAN VOICES, )

INDIAN CREEK WATERSHED )
ASSOCIATION, PRESERVE CRAIG, )
SAVE MONROE, AND WILD VIRGINIA )
)
Petitioners, )
)
v. ) No. 21-1040
) (consolidated with 20-1512)
FEDERAL ENERGY REGULATORY )
COMMISSION, )
)
Respondent. )
_________________________________________)

CERTIFICATE OF SERVICE

Pursuant to Rule 25 of the Federal Rules of Appellate Procedure, I hereby

certify that on February 3, 2021, I electronically filed the foregoing Motion of Public

Service Company of North Carolina, Incorporated For Leave to Intervene As Party

Respondent, and the Corporate Disclosure Statement, with the Clerk of the Court for

the U.S. Court of Appeals for the District of Columbia Circuit by using the appellate

CM/ECF system, and served copies of the foregoing via the Court’s CM/ECF system

on all ECF registered counsel.

Dated at Washington, DC, this 3rd day of February, 2021.

1
USCA Case #21-1040 Document #1883630 Filed: 02/03/2021 Page 16 of 16

/s/ Charlotte Taylor

Charlotte Taylor
Attorney for Public Service Company of
North Carolina, Incorporated