EarthReports, Inc. v. FERC , 828 F.3d 949 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 19, 2016 Decided July 15, 2016
No. 15-1127
EARTHREPORTS, INC., DOING BUSINESS AS PATUXENT
RIVERKEEPER, ET AL.,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
DOMINION COVE POINT LNG, LP, ET AL.,
INTERVENORS
On Petition for Review of Orders of
the Federal Energy Regulatory Commission
Deborah Goldberg argued the cause for petitioner
EarthReports, Inc., et al. With her on the briefs were Moneen
Nasmith and Anne Havemann.
Hope M. Babcock, Daniel H. Lutz, and Sarah J. Fox were
on the brief for amici curiae Waterkeepers Chesapeake, et al. in
support of petitioners EarthReports, Inc., et al.
Karin L. Larson, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
brief were Robert H. Solomon, Solicitor, and Susanna Y. Chu,
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Attorney. Lisa B. Luftig, Attorney, entered an appearance.
Catherine E. Stetson argued the cause for intervenors
Dominion Cove Point LNG, LP and Statoil Natural Gas, LLC.
With her on the brief were J. Patrick Nevins, Sean Marotta, and
Kirstin E. Gibbs. Christopher M. Heywood entered an
appearance.
Ben Norris argued the cause for respondent-intervenor
American Petroleum Institute. With him on the brief were John
Longstreth, David L. Wochner, and Stacy Linden.
Before: ROGERS, GRIFFITH and KAVANAUGH, Circuit
Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Several environmental
organizations petition for review of the Federal Energy
Regulatory Commission’s conditional authorization of the
conversion of the Cove Point liquefied natural gas (“LNG”)
facility from an import maritime terminal to a mixed-use, import
and export terminal. Petitioners contend that the Commission
failed to consider several possible environmental impacts that
the Cove Point conversion project may have, and thus did not
satisfy its obligations under the National Environmental Policy
Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq. We deny the
petition. For the reasons set forth in Sierra Club v. FERC
(Freeport), No. 14-1275, 2016 WL 3524262 (D.C. Cir. June 28,
2016), the Commission was not required under NEPA to
consider indirect effects of increased natural gas exports through
the Cove Point facility, including climate impacts. Petitioners’
remaining challenges — to the Commission’s NEPA analysis
of the impacts of ballast water on water quality, maritime traffic
on the North Atlantic right whale, and the Cove Point facility’s
3
operations on public safety — fail to show that the Commission
did not adequately address these concerns.
I.
The Cove Point LNG facility is located in Maryland on the
western shore of the Chesapeake Bay. It is owned by Dominion
Cove Point LNG, LP. The facility was originally constructed to
serve as an import terminal for maritime LNG shipments: Cove
Point would receive maritime shipments of LNG, vaporize the
LNG into conventional natural gas, and transport it through a
dedicated pipeline to facilities in Virginia. From there, the
natural gas could be transferred into national pipeline networks
for delivery to consumers. Due to changes in market conditions,
Cove Point was largely dormant from 1980 until 1994. In 1994,
the Commission authorized the reactivation of Cove Point’s
vaporization and storage facilities and the construction of a
liquefaction facility that could turn conventional natural gas into
LNG for storage. See Cove Point LNG Ltd. Partnership, 68
F.E.R.C. ¶ 61,377 (1994). A further reactivation of Cove
Point’s import terminal facilities was authorized in 2001, see
Cove Point LNG Ltd. Partnership, 97 F.E.R.C. ¶ 61,043 (2001),
and projects to expand and modernize its facilities were
authorized in 2006 and 2009, see Dominion Cove Point LNG,
LP, 128 F.E.R.C. ¶ 61,037 (2009), on reh’g, 129 F.E.R.C. ¶
61,137 (2009); Dominion Cove Point LNG, LP, 115 F.E.R.C. ¶
61,337 (2006), on reh’g, 118 F.E.R.C. ¶ 61,007 (2007).
In April 2013, Dominion filed an application for
authorization to convert its Cove Point LNG facility from a
facility for maritime LNG imports to a dual-use facility for
maritime LNG exports and imports. It sought authorization to
construct and operate liquefaction facilities for the export of
LNG under section 3 of the Natural Gas Act (“NGA”), 15
U.S.C. § 717b, and pipeline-related compressor facilities for the
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transport of the natural gas under NGA § 7, id. § 717f. The
project called for the construction of an additional liquefaction
facility within the Cove Point facility’s existing footprint as well
as modifications to Cove Point’s marine terminal facilities and
compressors on its dedicated pipeline in Virginia. The project
did not include the addition of any LNG storage tanks or any
increase in the size or frequency of LNG marine traffic
previously authorized for the Cove Point LNG terminal.
Under the NGA, regulatory oversight for the export of LNG
and supporting facilities is divided between the Commission and
the Department of Energy (“DOE”). Section 3(a) of the NGA,
15 U.S.C. § 717b(a), bars exportation of any natural gas from
the United States to a foreign country without “first having
secured an order . . . authorizing it to do so.” In 1977, Congress
transferred the regulatory functions of NGA § 3 to DOE. See 42
U.S.C. § 7151(b). DOE, in turn, delegated to the Commission
authority to approve or deny an application for the siting,
construction, expansion, or operation of a LNG terminal, 15
U.S.C. § 717b(e), while retaining exclusive authority over the
export of natural gas as a commodity, id. § 717b(a). See DOE
Delegation Order No. 00-004.00A (effective May 16, 2006); see
also 42 U.S.C. § 7172(e). Section 7 of the NGA vests the
Commission with authority over the construction and operation
of interstate natural gas pipelines and related facilities. See 15
U.S.C. § 717f(c)(1)(A); see also 42 U.S.C. §§ 7151(b) &
7172(a)(1); Consol. Edison Co. of N.Y., Inc. v. FERC, 315 F.3d
316, 319 (D.C. Cir. 2003). Under NGA § 3, an LNG proposal
“shall” be authorized unless the proposal “will not be consistent
with the public interest[,]” 15 U.S.C. § 717b(a), while under
NGA § 7 a finding must be made that a proposal “is or will be
required by the present or future public convenience and
necessity[,]” id. § 717f(e); NGA § 3, unlike § 7, “sets out a
general presumption favoring such authorization.” W. Va. Pub.
Servs. Comm’n v. Dep’t of Energy, 681 F.2d 847, 856 (D.C. Cir.
5
1982).
NEPA requires federal agencies to include an
environmental impact statement (“EIS”) in “every
recommendation or report on proposals for . . . major Federal
actions significantly affecting the quality of the human
environment . . . .” 42 U.S.C. § 4332(2)(C); see also 40 C.F.R.
§ 1508.11. Under regulations promulgated by the Council on
Environmental Quality, agencies whose procedures do not
require preparation of an EIS must first prepare an
environmental assessment. See 40 C.F.R. § 1501.4. An
environmental assessment “[b]riefly provide[s] sufficient
evidence and analysis for determining whether to prepare an
[EIS][,]” including discussion of “the environmental impacts of
the proposed action and alternatives.” Id. § 1508.9. Such
assessments are to include consideration of both “[i]ndirect
effects” that are “caused by the action and are later in time or
farther removed in distance, but are still reasonably
foreseeable,” id. § 1508.8(b), and the “[c]umulative impact” that
“results from the incremental impact of the action when added
to other past, present, and reasonably foreseeable future
actions[,]” id. § 1508.7. If the agency concludes on the basis of
the environmental assessment that an EIS is not required
because the proposed actions “will not have a significant effect
on the human environment[,]” it must issue a finding of no
significant impact (“FONSI”) to fulfill NEPA’s documentation
requirements. Id. § 1508.13; see id. §§ 1501.4(e) &
1508.9(a)(1); Taxpayers of Mich. Against Casinos v. Norton,
433 F.3d 852, 857 (D.C. Cir. 2006). Congress has designated
the Commission as “the lead agency for the purposes of
coordinating all applicable Federal authorizations and for the
purposes of complying with [NEPA].” 15 U.S.C. § 717n(b)(1);
see also 42 U.S.C. § 7172(a)(2).
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The Commission devoted almost two years to preparing an
environmental assessment of over 200 pages for the Cove Point
expansion project. See Office of Energy Projects, Fed. Energy
Regulatory Comm’n, Environmental Assessment for the Cove
Point Liquefaction Project (May 2014) (“Environmental
Assessment”). (In June 2012, Dominion had obtained
authorization from the Commission to begin pre-filing
procedures for a proposed project to convert the Cove Point
LNG facility to a dual-use facility so as to obtain timely review
and approval of its application.) Commission staff reviewed
numerous public comments, including petitioners’, and
considered the direct, indirect, and cumulative impacts of new
liquefaction facilities at Cove Point and the modification of
pipeline and related facilities in Virginia. The Environmental
Assessment prepared by Commission staff concluded that the
Cove Point conversion project “would not constitute a major
federal action significantly affecting the quality of the human
environment,” provided Dominion complied with specific
mitigation measures, and recommended that the Commission
issue a FONSI. Id. at 186–198.
Following another period of public comment, the
Commission adopted the Environmental Assessment’s findings,
issued a FONSI, and conditionally authorized the Cove Point
conversion project. See Dominion Cove Point LNG, LP, 148
F.E.R.C. ¶ 61,244 at P 281 (2014) (“2014 Authorization
Order”). The Commission determined that an EIS was not
required because the new facilities would be “within the
footprint of the existing LNG terminal,” and the environmental
issues were “relatively small in number and well-defined.” Id.
¶ 275. Petitioners, among others, requested rehearing and
moved for a stay. On rehearing, the Commission rejected
petitioners’ challenges to the FONSI and denied requests for a
stay as moot. See Dominion Cove Point LNG, LP, 151 F.E.R.C.
¶ 61,095 at PP 82, 86 (2015) (“Rehearing Order”). Petitioners
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petition for review of the authorization and rehearing orders; the
court denied the request for an emergency stay, see Order, No.
15-1127 (June 12, 2015).
Meanwhile, the Commission advises, DOE conditionally
granted Dominion’s request for NGA § 3 authorization to export
LNG through Cove Point, in 2011, to countries with which the
United States has a free-trade agreement, and in 2013, to non-
free trade nations. See Resp’t’s Br. 23. DOE completed its
environmental review in 2015 and conditionally approved the
exports. Id. at 23-24; see Office of Fossil Energy, U.S. Dep’t of
Energy, Opinion and Order Denying Request for Rehearing of
Order Granting Long-Term, Multi-Contract Authorization to
Export Liquefied Natural Gas by Vessel from the Cove Point
LNG Terminal in Calvert County, Maryland, to Non-Free Trade
Agreement Nations (Dkt. No. 11-128-LNG) (Apr. 18, 2016) at
4-8.
II.
Petitioners contend that the Commission, contrary to its
NEPA obligations, failed to take a hard look at several possible
environmental impacts that could result from the Cove Point
conversion project. In their view, the Commission’s review
should have included the impacts of the increased domestic
natural gas production that will result from the exports passing
through the converted Cove Point facility, as well as the climate
impact of emissions from the production, transport, and
consumption of the exported natural gas. In addition, petitioners
contend that the Commission failed to adequately consider
several direct effects of the conversion project: the impacts of
ballast water on water quality, maritime shipping on the North
Atlantic right whale, and the modified Cove Point facility’s
operations on public safety. The Commission responds that it
correctly concluded that the former are not within the scope of
8
NEPA because they are not reasonably foreseeable
consequences of the conversion project, and that it adequately
addressed the latter.
Our review of the Commission’s compliance with NEPA is
limited to determining whether its NEPA analysis was
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” Nat’l Comm. for the New River, Inc. v.
FERC, 373 F.3d 1323, 1327 (D.C. Cir. 2004) (quoting 5 U.S.C.
§ 706(2)(A)). Review is intended to ensure that the agency
“t[ook] a ‘hard look’ at the environmental consequences before
taking a major action[,]” and “adequately considered and
disclosed the environmental impact of its actions . . . .” Balt.
Gas & Elec. Co. v. NRDC, Inc., 462 U.S. 87, 97-98 (1983).
“[A]s long as the agency’s decision is fully informed and well-
considered, it is entitled to judicial deference and a reviewing
court should not substitute its own policy judgment.” NRDC,
Inc. v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988) (internal
quotation omitted).
A.
Petitioners’ primary contention is that the Commission
unlawfully refused to consider the indirect effects that the Cove
Point conversion project will have by inducing greater natural
gas exports. Such exports, they maintain, will lead to increased
U.S. domestic production of natural gas in areas like the
Marcellus shale region in the northeast United States, which in
turn will lead to increased extraction through hydraulic
fracturing, pipeline development, and other activities with a
substantial adverse environmental effect. Increased exports,
they maintain, will result in additional greenhouse gas emissions
from the production, transmission, and consumption of any
newly exported natural gas, which in turn will contribute to
climate change. The Commission declined to consider upstream
domestic natural gas production in its NEPA review because it
9
was “not sufficiently causally related” to the Cove Point
conversion project and was “speculative and not reasonably
foreseeable[,]” and concluded “[t]he same principle holds true
for potential downstream [greenhouse gas] emissions.” 2014
Authorization Order, ¶¶ 228, 246.
Petitioners’ contentions here are similar, if not identical, to
those addressed in Sierra Club (Freeport), 2016 WL 3524262.
There petitioners also contended that the Commission had failed
to give adequate consideration under NEPA to the indirect
effects of a different proposed LNG project, which petitioners
maintained would facilitate greater LNG exports and thereby
induce increased domestic gas production and prompt greater
domestic reliance on coal as a fuel source. See id. at *6.
Looking to Department of Transportation v. Public Citizen, 541
U.S. 752 (2004), the court emphasized that the Commission was
not required to “examine everything for which the [project]
could conceivably be a but-for cause” in order to satisfy NEPA.
Sierra Club (Freeport), 2016 WL 3524262, at *6 (citing Pub.
Citizen, 541 U.S. at 767; Village of Bensenville v. FAA, 457 F.3d
52, 65 (D.C. Cir. 2006)). Instead, to warrant consideration
under NEPA, an effect had to be “sufficiently likely to occur
that a person of ordinary prudence would take it into account in
reaching a decision.” Id. (quoting City of Shoreacres v.
Waterworth, 420 F.3d 440, 453 (5th Cir. 2005) (quoting Sierra
Club v. Marsh, 976 F.2d 763, 767 (1st Cir. 1992))). The court
held:
[T]he Commission’s NEPA analysis did not have to
address the indirect effects of the anticipated export of
natural gas . . . because [DOE], not the Commission,
has sole authority to license the export of any natural
gas going through the Freeport facilities. In the
specific circumstances where, as here, any agency “has
no ability to prevent a certain effect due to” that
10
agency’s “limited statutory authority over the relevant
action[],” then that action “cannot be considered a
legally relevant ‘cause’ of the effect” for NEPA
purposes.
Id. at *7 (quoting Pub. Citizen, 541 U.S. at 771). The court
reached the same conclusion, citing Sierra Club (Freeport), in
the related case of Sierra Club v. FERC (Sabine Pass), No. 14-
1249, 2016 WL 3525562 (D.C. Cir. June 28, 2016), and rejected
almost identical contentions regarding the indirect effects of
increasing a different LNG terminal’s production capacity. See
id. at *5-6. We do so here as well.
Petitioners’ contentions regarding the indirect effect of
increased exports on upstream natural gas production resemble
those rejected in Sierra Club (Freeport) and Sierra Club (Sabine
Pass). And while those cases did not address whether NEPA
reaches the effects of emissions arising from the transport and
consumption of exported natural gas, this indirect effect
similarly “cannot occur unless a greater volume of [LNG] is
shipped from [Cove Point] and enters the international
marketplace.” Sierra Club (Sabine Pass), 2016 WL 3525562,
at *5. Because “[DOE] alone has the legal authority to authorize
[Dominion] to increase commodity exports of liquefied natural
gas[,]” the challenged orders here too “are not the legally
relevant cause of the[se] indirect effects” and “the Commission
did not need to consider [them] in its NEPA review.” Id. As in
Sierra Club (Freeport) and Sierra Club (Sabine Pass),
petitioners “remain[] free to raise these issues in a challenge to
the [DOE’s] NEPA review of its export decision.” Id.
One aspect of petitioners’ challenge, however, does not
stem from increased natural gas exports, namely the
Commission’s failure to use “social cost of carbon” analysis or
a similar analytical tool to analyze the environmental impacts of
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greenhouse gas emissions from the construction and operation
of the converted Cove Point facilities. The Commission
acknowledged the availability of the “social cost of carbon” tool,
but, in its opinion concluded that, “it would not be appropriate
or informative to use for this project” for three reasons: the lack
of consensus on the appropriate discount rate leads to
“significant variation in output[,]” the tool “does not measure
the actual incremental impacts of a project on the
environment[,]” and “there are no established criteria identifying
the monetized values that are to be considered significant for
NEPA purposes.” Rehearing Order, ¶ 54. Petitioners’ response,
that the Commission should have “present[ed] values calculated
with the full range of rates” or “disclosed the limitations of the
tool[,]” Pet’rs’ Reply Br. 15-16, belies their contention that the
Commission acted unreasonably in finding the tool inadequately
accurate to warrant inclusion under NEPA. As for using other
tools, the Commission observed that “there is no standard
methodology to determine how a project’s incremental
contribution to [greenhouse gas emissions] would result in
physical effects on the environment, either locally or globally.”
2014 Authorization Order, ¶ 246; see Environmental
Assessment at 171. Although petitioners take a different
position, they identify no method other than the “social cost of
carbon” tool that the Commission could have used. Hence,
petitioners provide no reason to doubt the reasonableness of the
Commission’s conclusion. See WildEarth Guardians v. Jewell,
738 F.3d 298, 309-12 (D.C. Cir. 2013).
B.
Petitioners’ remaining challenges to the adequacy of the
Commission’s NEPA analysis are unpersuasive because, as
discussed infra, the Commission fulfilled its NEPA obligations
by adequately considering petitioners’ concerns.
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1. Ballast Water. Petitioners contend that the Commission
“arbitrarily minimized” the impact that the unloading of ballast
water by maritime vessels taking on LNG at the Cove Point
facility may have on local water quality, particularly through the
introduction of foreign invasive species. Pet’rs’ Br. 47. The
Commission acknowledged these risks and concluded that “the
currently-required measures for all ships entering U.S. waters,
including offshore ballast water exchange, provide best
management practices to minimize risks from invasive species
and contamination from non-U.S. ports” and that “new rules and
discharge standards approved by the Coast Guard would further
minimize” these risks. 2014 Authorization Order, ¶ 128; see
Rehearing Order, ¶ 72; Environmental Assessment at 53-54.
Petitioners object that the new Coast Guard regulations will
not be in effect by the time the conversion project is complete.
See Pet’rs’ Br. 47-48. Citing expert opinion, they note that
existing measures are “limited in [] ability to reduce the risk of
ballast water invasive species” and that the introduction of such
species could pose substantial risks to the local ecosystem as
well as the operation of a nearby nuclear power plant. Id. at 48
(quoting Letter from Dr. Mario Tamburri, Dir., Mar. Envtl.
Research Ctr., Research Professor, Chesapeake Biological Lab.
UMCES (June 2, 2014) at 2). The Commission recognized the
timeline for implementing the new Coast Guard regulations and
concluded that existing measures are adequate, explaining that
“[w]hether the regulations are updated in 2016 or at some point
in the future, Dominion’s operators will be subject to the most
recent regulations” and that, particularly as “Maryland does not
currently require more stringent standards than the federal
ballast water program, the Commission has no grounds to
presume the established regulations are not satisfactory . . . .”
Rehearing Order, ¶¶ 72-74. The Commission acknowledged Dr.
Tamburri’s analysis and found unfeasible the onshore ballast
water collection and treatment process he recommended because
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Dominion “does not own or control the LNG carriers visiting the
terminal” and thus cannot “requir[e] adaptations to the vessels
to allow for pumping ballast water into an onshore system[,]”
among other reasons. 2014 Authorization Order, ¶¶ 126, 130.
Petitioners, in their Reply Brief, criticize an analysis by a
Maryland state agency that the Commission cited in authorizing
the conversion project for failing to take account of the
difference in ballast water effects that vessels receiving as
opposed to unloading LNG are likely to have. The
Environmental Assessment, however, described that “[d]uring
the LNG transfer process, LNG ships would discharge ballast
water . . . .” Environmental Assessment at 53. On rehearing,
the Commission made clear that it did not rely solely on that
state agency’s analysis in reaching its conclusion. See
Rehearing Order, ¶ 72.
To the extent petitioners view the Commission’s statement
that “[i]t is outside of [its] jurisdiction and expertise to
promulgate regulations or invent best management practices
regarding ballast water exchange and invasive species
control[,]” id., ¶ 74, to be an abdication of responsibility, see
Pet’rs’ Br. 49-50, we disagree. Rather, it represents the
Commission’s reasonable assessment that having “fairly
evaluated” possible environmental impacts of ballast water, it
had “no grounds” for requiring more stringent conditions than
those required by the Coast Guard and the state of Maryland.
Rehearing Order, ¶ 74. The cases cited by petitioners are
distinguishable because the agencies deferred to another
agency’s assessment without independently evaluating the
relevant impacts. See Del. Dep’t of Nat. Res. & Envtl. Control
v. EPA, 785 F.3d 1, 16 (D.C. Cir. 2015); New York v. Nuclear
Regulatory Comm’n, 681 F.3d 471, 481 (D.C. Cir. 2012).
14
2. North Atlantic Right Whale. Petitioners also contend
that the Commission “refused to analyze,” Pet’rs’ Br. 50, the
possible impact of maritime traffic on the North Atlantic right
whale, which petitioners characterize as “so critically
endangered that the loss of even one individual could threaten
the recovery of the entire population.” Id. But the Commission
acknowledged the threat that maritime traffic can pose to such
creatures and concluded that the Cove Point conversion project
did not affect those risks because the Commission was not
authorizing any maritime traffic over previously authorized
levels already addressed by existing mitigation measures. See
Rehearing Order, ¶¶ 75-78; 2014 Authorization Order, ¶ 142;
Environmental Assessment at 71-72.
Petitioners criticize the Commission — as well as the
National Oceanic and Atmospheric Administration (“NOAA”)
with which it consulted — for relying on a 2007 study prepared
in connection with prior Cove Point authorizations. They
maintain the study is outdated and does not reflect subsequent
changes, including maritime traffic and coastal development,
and that the Commission should have supplemented the study.
On rehearing, the Commission stated its “staff and NOAA,
during the informal consultation process, reviewed the previous
extensive analyses for past Cove Point projects,” namely, the
2006 expansion project and the 2009 pier reenforcement project.
Rehearing Order, ¶ 76. They “did not find a significant
difference in the type of impacts and available mitigation
measures associated with the project that would necessitate a
change in the previous determination of effect for the North
Atlantic right whale.” Id. NEPA regulations encourage
“tiering” of environmental studies where they address the same
subject. See 40 C.F.R. § 1502.20. Further, the Commission
concluded that its earlier analysis “adequately characterizes the
threat of impact on the North Atlantic right whale” from changes
in climate and development, and that “in the review of future
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threats . . . NOAA will direct appropriate measures to protect the
species” with which Dominion would be obligated to comply.
Rehearing Order, ¶ 78. Petitioners point to nothing to question
the reasonableness of the Commission’s conclusion that its
earlier analyses sufficiently anticipated the changes they
identified and remain adequate to address the risks to the North
Atlantic right whale. The Commission, thus, did not act
arbitrarily and capriciously in relying on them. See Theodore
Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 510-12
(D.C. Cir. 2010).
3. Public Safety. Petitioners further contend that the
Commission failed to adequately consider several threats to
public safety, including the intensity of the impact that a
catastrophic incident might have given what petitioners view as
an under-sized footprint for the Cove Point facility and its
proximity to nearby residences. For its part, the Commission
discussed public safety concerns at length and made its
conditional authorization subject to several safety-related
conditions, including compliance with relevant federal, state,
and local requirements and coordinating with relevant agencies.
See 2014 Authorization Order, ¶¶ 184-217; Rehearing Order,
¶¶ 66-69; Environmental Assessment at 123-59.
Petitioners’ primary public safety-related concern is that the
Commission failed to adequately account for the fact that the
Cove Point facility will handle dangerous chemicals on what
petitioners view as a small footprint proximate to residential
areas, which they maintain amplifies the possible effects of any
safety incident. The Commission acknowledged public safety
concerns because “toxic and flammable chemicals would be
trucked to and from the facility[,]” “LNG storage tanks . . . are
a safety hazard to nearby homes in the event of a . . . rupture[,]”
and “the evacuation route is adjacent to the facility[,]” and
identified various safety measures addressing each. 2014
16
Authorization Order, ¶¶ 200, 205-06. The Environmental
Assessment included a detailed overview of the facility and its
environs, noting the Cove Point facilities would be “situated
within a 131-acre area . . . located within an approximately
1,017-acre parcel owned by [Dominion].” Environmental
Assessment at 3. Petitioners fail to provide support for their
assertion that the disparity between Cove Point’s footprint-to-
facility ratio and that of other, less densely occupied facilities
impacts public safety as would show that the Commission failed
adequately to identify and consider public safety issues.
Petitioners object that the Commission’s repeated
assurances that the Cove Point LNG facility would comply with
federal and local standards and coordinate with appropriate
authorities constitutes an abdication of its responsibility to
conduct an independent public safety evaluation. As evidence,
petitioners refer to a September 2014 news article and several
affidavits from local residents attached to petitioners’ brief to
establish Article III standing. But the court’s review is limited
to the administrative record before the agency at the time of its
decision. See James Madison Ltd. v. Ludwig, 82 F.3d 1085,
1095-96 (D.C. Cir. 1996). Regardless, as noted, the
Commission conducted an extensive independent review of
safety considerations; the opinions and standards of – and
Dominion’s future coordination with – federal and local
authorities were one reasonable component.
Finally, amici’s identification of additional possible
environmental impacts they claim were not adequately
considered by the Commission are not properly before the court.
See Eldred v. Reno, 239 F.3d 372, 378 (D.C. Cir. 2001), aff’d,
on other grounds, 537 U.S. 186 (2003); see also 16AA Wright,
Miller, & Cooper, Federal Practice and Procedure § 3975.1
& n.4 (4th ed. Apr. 2016).
17
Accordingly, because petitioners fail to show that the
Commission’s NEPA analysis was deficient for failing to
consider indirect effects of the Cove Point conversion project or
inadequately considered their remaining concerns and that the
Commission thus acted arbitrarily and capriciously, we deny the
petition for review.