Sierra Club v. FERC , 867 F.3d 1357 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 18, 2017 Decided August 22, 2017
No. 16-1329
SIERRA CLUB, ET AL.,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
DUKE ENERGY FLORIDA, LLC, ET AL.,
INTERVENORS
Consolidated with 16-1387
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Elizabeth F. Benson argued the cause for petitioners Sierra
Club, et al. With her on the briefs was Eric Huber. Keri N.
Powell entered an appearance.
Jonathan Perry Waters argued the cause and filed the brief
for petitioners G.B.A. Associates, LLC, et al.
Ross R. Fulton, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on the
2
brief were David L. Morenoff, General Counsel, Robert H.
Solomon, Solicitor, and Nicholas M. Gladd, Attorney. Anand
Viswanathan, Attorney, entered an appearance.
Jeremy C. Marwell argued the cause for respondent-
intervenors. With him on the brief were Michael B. Wigmore,
James D. Seegers, Gregory F. Miller, P. Martin Teague, James
H. Jeffries, IV, Charles L. Schlumberger, Sid J. Trant, Anna M.
Manasco, Brian D. O’Neill, Michael R. Pincus, and William
Lavarco. Marc J. Ayers and Emily M. Ruzic entered
appearances.
Mohammad O. Jazil and David W. Childs were on the brief
for amicus curiae The Florida Reliability Coordinating
Council, Inc. in support of respondent.
Before: ROGERS, BROWN, and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Opinion concurring in part and dissenting in part filed by
Circuit Judge BROWN.
GRIFFITH, Circuit Judge: Environmental groups and
landowners have challenged the decision of the Federal Energy
Regulatory Commission to approve the construction and
operation of three new interstate natural-gas pipelines in the
southeastern United States. Their primary argument is that the
agency’s assessment of the environmental impact of the
pipelines was inadequate. We agree that FERC’s
environmental impact statement did not contain enough
information on the greenhouse-gas emissions that will result
from burning the gas that the pipelines will carry. In all other
respects, we conclude that FERC acted properly. We thus grant
3
Sierra Club’s petition for review and remand for preparation of
a conforming environmental impact statement.
I
The Southeast Market Pipelines Project comprises three
natural-gas pipelines now under construction in Alabama,
Georgia, and Florida. The linchpin of the project is the Sabal
Trail pipeline, which will wend its way from Tallapoosa
County in eastern Alabama, across southwestern Georgia, and
down to Osceola County, Florida, just south of Orlando: a
journey of nearly five hundred miles. Sabal Trail will connect
the other two portions of the project. The first—the Hillabee
Expansion—will boost the capacity of an existing pipeline in
Alabama, which will feed gas to Sabal Trail’s upstream end for
transport to Florida. At the downstream end of Sabal Trail will
be the Florida Southeast Connection, which will link to a power
plant in Martin County, Florida, 120 miles away. Shorter spurs
will join Sabal Trail to other proposed and existing power
plants and pipeline networks. By its scheduled completion in
2021, the project will be able to carry over one billion cubic
feet of natural gas per day.
The three segments of the project have different owners, 1
but they share a common purpose: to serve Florida’s growing
demand for natural gas and the electric power that natural gas
can generate. At present, only two major natural-gas pipelines
serve the state, and both are almost at capacity. Two major
utilities, Florida Power & Light and Duke Energy Florida, have
1
Sabal Trail is owned by Spectra Energy Partners, NextEra
Energy, and Duke Energy; the Hillabee Expansion is owned by the
Williams Companies; and Florida Southeast Connection is owned by
NextEra. Duke Energy, and NextEra’s subsidiary Florida Power &
Light, will also be the project’s primary customers.
4
already committed to buying nearly all the gas the project will
be able to transport. Florida Power & Light claims that without
this new project, its gas needs will begin to exceed its supply
this year. But the project’s developers also indicate that the
increased transport of natural gas will make it possible for
utilities to retire older, dirtier coal-fired power plants.
Despite these optimistic predictions, the project has drawn
opposition from several quarters. Environmental groups fear
that increased burning of natural gas will hasten climate change
and its potentially catastrophic consequences. Landowners in
the pipelines’ path object to the seizure of their property by
eminent domain. And communities on the project’s route are
concerned that pipeline facilities will be built in low-income
and predominantly minority areas already overburdened by
industrial polluters.
Section 7 of the Natural Gas Act places these disputes into
the bailiwick of the Federal Energy Regulatory Commission
(FERC), which has jurisdiction to approve or deny the
construction of interstate natural-gas pipelines. See 15 U.S.C.
§ 717f. Before any such pipeline can be built, FERC must grant
the developer a “certificate of public convenience and
necessity,” id. § 717f(c)(1)(A), also called a Section 7
certificate, upon a finding that the project will serve the public
interest, see id. § 717f(e). FERC is also empowered to attach
“reasonable terms and conditions” to the certificate, as
necessary to protect the public. Id. A certificate holder has the
ability to acquire necessary rights-of-way from unwilling
landowners by eminent domain proceedings. See id. § 717f(h).
FERC launched an environmental review of the proposed
project in the fall of 2013. The agency understood that it would
need to prepare an environmental impact statement (EIS)
5
before approving the project, as the National Environmental
Policy Act of 1969 (NEPA) requires for each “major Federal
action[] significantly affecting the quality of the human
environment.” See 42 U.S.C. § 4332(2)(C). FERC solicited
public comment and held thirteen public meetings on the
project’s environmental effects, and made limited
modifications to the project plan in response to public
concerns, before releasing a draft impact statement in
September 2015 and a final impact statement in December
2015. In the meantime, the pipeline developers formally
applied for their Section 7 certificates in September and
November 2014.
In the Certificate Order, issued on February 2, 2016, FERC
granted the requested Section 7 certificates and approved
construction of all three project segments, subject to
compliance with various conditions not at issue here. Order
Issuing Certificates and Approving Abandonment, Fla. Se.
Connection, LLC, 154 FERC ¶ 61,080 (2016) (Certificate
Order). This order recognized a number of parties as
intervenors in the agency proceedings, among them three
environmental groups (Sierra Club, Flint Riverkeeper, and
Chattahoochee Riverkeeper) and two Georgia landowners
whose land Sabal Trail will cross (GBA Associates and K.
Gregory Isaacs). These parties timely sought rehearing and a
stay of construction; FERC agreed to entertain their arguments
but denied a stay. Construction on the pipelines began in
August 2016. On September 7, 2016, FERC issued its
Rehearing Order, denying rehearing and declining to rescind
the pipelines’ certificates. Order on Rehearing, Fla. Se.
Connection, LLC, 156 FERC ¶ 61,160 (2016) (Rehearing
Order).
6
Both the environmental groups (collectively, “Sierra
Club”) and the landowners timely petitioned our court for
review of the Certificate Order and the Rehearing Order. Sierra
Club argues that FERC’s environmental impact statement
failed to adequately consider the project’s contribution to
greenhouse-gas emissions and its impact on low-income and
minority communities. Sierra Club also contends that Sabal
Trail’s service rates were based on an invalid methodology.
The landowners allege further oversights in the EIS, dispute the
public need for the project, and assert that FERC used an
insufficiently transparent process to approve the pipeline
certificates. Their petitions were consolidated before us.
II
We have jurisdiction to hear these petitions under the
Natural Gas Act. See 15 U.S.C. § 717r(b). Any party to a
proceeding under the Act who is “aggrieved” by a FERC order
may petition for review of that order in our court, provided that
they first seek rehearing before FERC. Id. § 717r(a)-(b). Sierra
Club was an intervenor in the proceedings on all three pipeline
applications, see Certificate Order App. A, and the landowner
petitioners were intervenors in the Sabal Trail proceedings, see
id.
A party is “aggrieved” by a FERC order if it challenges the
order under NEPA and asserts an environmental harm. See
Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 273-74 (D.C.
Cir. 2015). A landowner forced to choose between selling to a
FERC-certified developer and undergoing eminent domain
proceedings is also “aggrieved” within the meaning of the Act.
See B&J Oil & Gas v. FERC, 353 F.3d 71, 75 (D.C. Cir. 2004);
Moreau v. FERC, 982 F.2d 556, 564 n.3 (D.C. Cir. 1993).
7
Sierra Club falls into the former camp, and the Georgia
landowners into the latter.
We also have an independent duty to ensure that at least
one petitioner has standing under Article III of the Constitution.
See Ams. for Safe Access v. DEA, 706 F.3d 438, 442-43 (D.C.
Cir. 2013). A petitioner invoking federal-court jurisdiction has
the burden to establish that she has suffered an injury in fact
that is fairly traceable to the challenged action of the defendant
and “likely” to be redressed by a favorable judicial decision.
WildEarth Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir.
2013). And an association, like Sierra Club, can sue on behalf
of its members if at least one member would have standing to
sue in her own right, the organization is suing to vindicate
interests “germane to its purpose,” and nothing about the claim
asserted or the relief requested requires an individual member
to be a party. Sierra Club v. FERC, 827 F.3d 36, 43 (D.C. Cir.
2016). On direct review of agency action, an association can
establish its standing by having its individual members submit
affidavits to accompany the association’s opening brief. See
Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489
F.3d 1279, 1289 (D.C. Cir. 2007).
Several individual Sierra Club members submitted such
affidavits, explaining how the pipeline project would harm
their “concrete aesthetic and recreational interests.” WildEarth,
738 F.3d at 305. For example, one member, Robin Koon,
explained that the Sabal Trail pipeline will cross his property
(on an easement taken by eminent domain), that construction
noise will impair his enjoyment of his daily activities, and that
trees shading his house will be permanently removed. Other
Sierra Club members similarly averred that the pipeline project
will affect their homes and daily lives. “Such credible claims
of exposure to increased noise and its disruption of daily
8
activities, backed up by specific factual representations in an
affidavit or declaration, are sufficient to satisfy Article III’s
injury-in-fact requirement.” Sierra Club, 827 F.3d at 44. And
nobody disputes that the prevention of this sort of injury is
germane to Sierra Club’s conservation-oriented purposes, or
cites any reason why these individual members would need to
join the petition in their own names.
Because they allege concrete injury from FERC’s order
certifying the pipeline project, and because that certification
was based on an allegedly inadequate environmental impact
statement, these Sierra Club members, and therefore Sierra
Club itself, have standing to object to any deficiency in the
environmental impact statement. 2 See WildEarth Guardians,
738 F.3d at 306-08. The deficiency need not be directly tied to
the members’ specific injuries. For example, Sierra Club may
argue that FERC did not adequately consider the pipelines’
contribution to climate change. See id. The members’ injuries
are caused by the allegedly unlawful Certificate Order, and
would be redressed by vacatur of that order on the basis of any
defect in the environmental impact statement. See id. at 308. 3
2
Though GBA Associates and Isaacs raise different arguments
as to why the Certificate and Rehearing Orders are unlawful, the
standing analysis does not differ for them, as they seek the same
remedy and allege similar injuries to their property interests.
3
The same reasoning goes for Sierra Club’s argument that
FERC used an arbitrary and capricious methodology in determining
Sabal Trail’s initial rates. A finding that FERC failed to justify its
approach to this issue would lead us to “hold unlawful and set aside”
Sabal Trail’s certificate, see 5 U.S.C. § 706(2), which would in turn
redress the Sierra Club members’ environmentally based injuries in
fact. See Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563
F.3d 466, 479 (D.C. Cir. 2009) (finding Article III standing on the
9
Transco, owner of the Hillabee Expansion, argues that no
Sierra Club member has alleged an injury caused by Transco’s
section of the overall project, which would suggest that Sierra
Club lacks standing to seek the vacatur of Hillabee’s certificate.
Transco thus implicitly argues that the Certificate Order is
severable. Under this view, if Sierra Club succeeds on the
merits, but has standing to challenge only Sabal Trail’s
certificate, we could vacate only the portion of the Certificate
Order pertaining to Sabal Trail, and leave the rest intact.
The question whether an agency order is severable turns
on the agency’s intent. See Epsilon Elecs., Inc. v. U.S. Dep’t of
Treasury, 857 F.3d 913, 929 (D.C. Cir. 2017). “Where there is
substantial doubt that the agency would have adopted the same
disposition regarding the unchallenged portion if the
challenged portion were subtracted, partial affirmance is
improper.” Id. (quoting North Carolina v. FERC, 730 F.2d 790,
795-96 (D.C. Cir. 1984)). Since the beginning of its
environmental review, FERC has treated the project as a single,
integrated proposal. See Notice of Intent to Prepare an
Environmental Impact Statement for the Planned Southeast
Market Pipelines Project, 79 Fed. Reg. 10,793, 10,794 (Feb.
26, 2014) (explaining that FERC would prepare a single EIS
for the three pipelines, to help the agency determine “whether
the SMP Project is in the public convenience and necessity”).
That characterization carried through to the Certificate Order.
See J.A. 1075 (describing the pipelines as “separate but
connected” and noting that the Hillabee Expansion’s purpose
grounds that an agency’s “irrationally based” permitting program
threatened the arctic animals that the petitioners wanted to observe,
and that “setting aside and remanding” the program would redress
this threat).
10
is to give Sabal Trail’s customers access to upstream gas
supplies); J.A. 1096 (explaining that in the absence of Sabal
Trail, existing pipelines will not be able to deliver the gas that
the Florida Southeast Connection requires).
We substantially doubt that FERC would have approved
the Southeast Market Pipelines Project only in part, and we
especially doubt that the agency would have certified either of
the other two segments if Sabal Trail were not part of the
project. Because Sierra Club and the landowners have alleged
injury-in-fact caused by Sabal Trail, and because the
Certificate Order is not severable, both sets of petitioners have
standing to challenge the Certificate Order as a whole.
Having concluded that we have jurisdiction to entertain all
of petitioners’ claims, we turn to the merits of those claims.
III
Both sets of petitioners rely heavily on the National
Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat.
852 (1970). NEPA “declares a broad national commitment to
protecting and promoting environmental quality,” and brings
that commitment to bear on the operations of the federal
government. Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 348 (1989). The statute “commands agencies to
imbue their decisionmaking, through the use of certain
procedures, with our country’s commitment to environmental
salubrity.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d
190, 193-94 (D.C. Cir. 1991). One of the most important
procedures NEPA mandates is the preparation, as part of every
“major Federal action[] significantly affecting the quality of the
human environment,” of a “detailed statement” discussing and
11
disclosing the environmental impact of the action. 42 U.S.C.
§ 4332(2)(C).
This environmental impact statement, as it has come to be
called, has two purposes. It forces the agency to take a “hard
look” at the environmental consequences of its actions,
including alternatives to its proposed course. See id.
§ 4332(2)(C)(iii); Balt. Gas & Elec. Co. v. Nat. Res. Def.
Council, Inc., 462 U.S. 87, 97 (1983). It also ensures that these
environmental consequences, and the agency’s consideration
of them, are disclosed to the public. See WildEarth Guardians,
738 F.3d at 302. Importantly, though, NEPA “directs agencies
only to look hard at the environmental effects of their
decisions, and not to take one type of action or another.”
Citizens Against Burlington, 938 F.2d at 194. That is, the
statute is primarily information-forcing.
The role of the courts in reviewing agency compliance
with NEPA is accordingly limited. Furthermore, because
NEPA does not create a private right of action, we can entertain
NEPA-based challenges only under the Administrative
Procedure Act and its deferential standard of review. See
Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d
497, 507 (D.C. Cir. 2010). That is, our mandate “is ‘simply to
ensure that the agency has adequately considered and disclosed
the environmental impact of its actions and that its decision is
not arbitrary or capricious.’” WildEarth Guardians, 738 F.3d
at 308 (quoting City of Olmsted Falls v. FAA, 292 F.3d 261,
269 (D.C. Cir. 2002)). We should not “‘flyspeck’ an agency’s
environmental analysis, looking for any deficiency no matter
how minor.” Nevada v. Dep’t of Energy, 457 F.3d 78, 93 (D.C.
Cir. 2006) (citation omitted).
12
But at the same time, we are responsible for holding
agencies to the standard the statute establishes. An EIS is
deficient, and the agency action it undergirds is arbitrary and
capricious, if the EIS does not contain “sufficient discussion of
the relevant issues and opposing viewpoints,” Nevada, 457
F.3d at 93 (quoting Nat. Res. Def. Council v. Hodel, 865 F.2d
288, 294 (D.C. Cir. 1988)), or if it does not demonstrate
“reasoned decisionmaking,” Del. Riverkeeper Network v.
FERC, 753 F.3d 1304, 1313 (D.C. Cir. 2014) (quoting Found.
on Econ. Trends v. Heckler, 756 F.2d 143, 154 (D.C. Cir.
1985)). The overarching question is whether an EIS’s
deficiencies are significant enough to undermine informed
public comment and informed decisionmaking. See Nevada,
457 F.3d at 93. This is NEPA’s “rule of reason.” See Dep’t of
Transp. v. Pub. Citizen, 541 U.S. 752, 767 (2004).
With those principles in mind, we direct our attention to
the specific deficiencies the petitioners have alleged in the EIS
for the Southeast Market Pipelines Project. As noted above,
FERC prepared a single unified EIS for the project’s three
pipelines, and no party has challenged that approach. Thus, for
purposes of our NEPA analysis, we will consider the project as
a whole.
A
The principle of environmental justice encourages
agencies to consider whether the projects they sanction will
have a “disproportionately high and adverse” impact on low-
income and predominantly minority communities. 4 See J.A.
1353-54. Executive Order 12,898 required federal agencies to
4
Like petitioners, we refer to these two types of community
collectively as “environmental-justice communities.”
13
include environmental-justice analysis in their NEPA reviews,
and the Council on Environmental Quality, the independent
agency that implements NEPA, see 42 U.S.C. § 4344, has
promulgated environmental-justice guidance for agencies, see
J.A. 1369-78.
Sierra Club argues that the EIS failed to adequately take
this principle into account. Like the other components of an
EIS, an environmental justice analysis is measured against the
arbitrary-and-capricious standard. See Cmtys. Against Runway
Expansion, Inc. v. FAA, 355 F.3d 678, 689 (D.C. Cir. 2004).5
The analysis must be “reasonable and adequately explained,”
but the agency’s “choice among reasonable analytical
methodologies is entitled to deference.” Id. As always with
NEPA, an agency is not required to select the course of action
that best serves environmental justice, only to take a “hard
look” at environmental justice issues. See Latin Ams. for Social
& Econ. Dev. v. Fed. Highway Admin., 756 F.3d 447, 475-77
(6th Cir. 2014). We conclude that FERC’s discussion of
environmental justice in the EIS satisfies this standard.
The EIS explained that 83.7% of the pipelines’ proposed
route would cross through, or within one mile of,
environmental-justice communities (defined as census tracts
where the population is disproportionately below the poverty
line and/or disproportionately belongs to racial or ethnic
minority groups). That percentage varied from 54 to 80 percent
for the alternative routes proposed by stakeholders and
5
Because FERC voluntarily performed an environmental-
justice review, we need not decide whether Executive Order 12,898
is binding on FERC. See Runway Expansion, 355 F.3d at 689
(explaining that arbitrary-and-capricious analysis applies to every
section of an EIS, even sections included solely at the agency’s
discretion).
14
commenters, albeit with only one option below 70 percent.
This type of data appeared not only in the section of the EIS
specifically dedicated to environmental justice, but also in the
chapter that compared the various alternative routes. That later
chapter weighed environmental-justice statistics alongside
factors like total route length, wetlands impact, and the number
of homes near the route. It also discussed one additional
proposed route, which would cross the Gulf of Mexico and
avoid Georgia completely. This option would affect far fewer
environmental-justice communities, but in FERC’s assessment
would be infeasible because it would cost an additional two
billion dollars.
FERC concluded that the various feasible alternatives
“would affect a relatively similar percentage of environmental
justice populations,” and that the preferred route thus would not
have a disproportionate impact on those populations. See J.A.
836. The agency also independently concluded that the project
would not have a “high and adverse” impact on any population,
meaning, in the agency’s view, that it could not have a
“disproportionately high and adverse” impact on any
population, marginalized or otherwise. 6
Sierra Club contends that FERC misread
“disproportionately high and adverse,” the standard for when a
particular environmental effect raises an environmental-justice
concern. By Sierra Club’s lights, any effect can fulfill the test,
regardless of its intensity, extent, or duration, if it is not
beneficial and falls disproportionately on environmental-
6
Sierra Club argues that the project will in fact have “high and
adverse” impacts, but does so only in a brief and cursory fashion. See
CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (explaining that
we need not address cursory arguments).
15
justice communities. But even if we assume that understanding
to be correct, we cannot see how this EIS was deficient. It
discussed the intensity, extent, and duration of the pipelines’
environmental effects, and also separately discussed the fact
that those effects will disproportionately fall on environmental-
justice communities. Recall that the EIS informed readers and
the agency’s ultimate decisionmakers that 83.7% of the
pipelines’ length would be in or near environmental-justice
communities. The EIS also evaluated route alternatives in part
by looking at the number of environmental-justice
communities each would cross, and the mileage of pipeline
each would place in low-income and minority areas. FERC
thus grappled with the disparate impacts of the various possible
pipeline routes. Perhaps Sierra Club would have a stronger
claim if the agency had refused entirely to discuss the
demographics of the populations that will feel the pipelines’
effects, and had justified this refusal by pointing to the limited
intensity, extent, and duration of those effects. However, as the
EIS stands, we see no deficiencies serious enough to defeat the
statute’s goals of fostering well-informed decisionmaking and
public comment. See Nevada, 457 F.3d at 93.
The same goes for Sierra Club’s other arguments. The
agency’s methodology was reasonable, even where it deviated
from what Sierra Club would have preferred. See Runway
Expansion, 355 F.3d at 689. Take the agency’s decision to
compare the demographics along the various proposed routes
to each other instead of “the general population.” Sierra Club
Opening Br. 18. An EIS is meant to help agency heads choose
among the relevant alternatives, including the alternative of
taking no action, and to help the public weigh in. Thus, FERC’s
decision to directly compare the proposed alternatives to one
another, rather than to some broader population, was
reasonable under the circumstances. See id. (approving an
 16
environmental-justice review that compared “the population
predicted to be affected by . . . [a] project to the demographics
of the population that otherwise might conceivably be affected”
by the project). Another methodology might be more
appropriate in a case where some feasible alternative, with a
lower environmental-justice impact, has been left out of the
analysis. However, no party has offered any such alternative
here.
Sierra Club is particularly concerned about Sabal Trail’s
plan to build a compressor station (a facility that helps “pump”
gas along the pipeline, and gives off air and noise pollution
while doing so) in an African American neighborhood of
Albany, Dougherty County, Georgia. The agency identified
environmental-justice communities by looking at the
demographics of census tracts, which are county subdivisions
created to organize census data. The neighborhood in question
is a 100% African American census block, an even smaller
census subdivision, but because it sits in the midst of a
majority-white census tract, FERC did not designate it an
environmental-justice community. Sierra Club’s objection to
this omission elevates form over substance. The goal of an
environmental-justice analysis is satisfied if an agency
recognizes and discusses a project’s impacts on predominantly-
minority communities, even if it does not formally label each
such community an “environmental justice community.”
FERC did recognize the existence and demographics of the
neighborhood in question, and discussed the neighborhood
extensively. The EIS listed community features, including
subdivisions, schools, and churches, along with their distances
from the proposed compressor station, and explained that the
station’s noise and air-quality effects on these locations were
expected to remain within acceptable limits.
17
More persuasive is Sierra Club’s argument that FERC
disregarded the extent to which Dougherty County is already
overburdened with pollution sources. A letter to FERC from
four members of Georgia’s congressional delegation cites the
grim statistics: southern Dougherty County has 259 hazardous-
waste facilities, 78 air-polluting facilities, 20 toxic-polluting
facilities, and 16 water-polluting facilities. The EIS did not
mention these existing polluters in its discussion of Dougherty
County. Sierra Club thus argues that FERC inadequately
considered the project’s “cumulative impacts,” that is, its
effects taken in combination with existing environmental
hazards in the same area. See 40 C.F.R. § 1508.7; Del.
Riverkeeper, 753 F.3d at 1319-20.
Perhaps FERC could have said more, but the discussion it
undertook of the cumulative impacts of the proposed route
fulfilled NEPA’s goal of guiding informed decisionmaking.
The EIS acknowledged that the Sabal Trail project will
generate air pollution and noise pollution in Albany, and it
projected cumulative levels of both of these types of pollution
from all sources in the vicinity of the compressor station,
finding that both would remain below harmful thresholds. 7 We
are sensitive to Sierra Club’s broader contention that it is unjust
to locate a polluting facility in a community that already has a
high concentration of polluting facilities, even if those older
7
FERC appropriately relied on EPA’s national ambient air
quality standards (NAAQS) as a standard of comparison for air-
quality impacts. By presenting the project’s expected emissions
levels and the NAAQS standards side-by-side, the EIS enabled
decisionmakers and the public to meaningfully evaluate the project’s
air-pollution effects by reference to a generally accepted standard.
See Runway Expansion, 355 F.3d at 689 (explaining that in an
environmental-justice analysis, the agency’s “choice among
reasonable analytical methodologies is entitled to deference”).
18
facilities produce pollution of a different type or in different
locations. We note, however, that FERC took seriously
commenters’ concerns about locating Sabal Trail facilities in
Dougherty County. The agency reopened the comment period
on the EIS to seek input on relocating the compressor station,
and then actually secured Sabal Trail’s agreement to relocate
the station, moving it in part to mitigate effects on
environmental-justice communities. The EIS also considered
four route alternatives proposed by Sierra Club and its fellow
environmental petitioners that would have partially or
completely avoided Albany, but rejected them all, mainly on
the ground that they would have had a greater overall impact
on residences and populated areas.
To sum up, the EIS acknowledged and considered the
substance of all the concerns Sierra Club now raises: the fact
that the Southeast Market Pipelines Project will travel
primarily through low-income and minority communities, and
the impact of the pipeline on the city of Albany and Dougherty
County in particular. The EIS also laid out a variety of
alternative approaches with potential to address those concerns,
including those proposed by petitioners, and explained why, in
FERC’s view, they would do more harm than good. The EIS
also gave the public and agency decisionmakers the qualitative
and quantitative tools they needed to make an informed choice
for themselves. NEPA requires nothing more.
B
It’s not just the journey, though, it’s also the destination.
All the natural gas that will travel through these pipelines will
be going somewhere: specifically, to power plants in Florida,
some of which already exist, others of which are in the planning
stages. Those power plants will burn the gas, generating both
19
electricity and carbon dioxide. And once in the atmosphere,
that carbon dioxide will add to the greenhouse effect, which the
EIS describes as “the primary contributing factor” in global
climate change. J.A. 915. The next question before us is
whether, and to what extent, the EIS for this pipeline project
needed to discuss these “downstream” effects of the pipelines
and their cargo. We conclude that at a minimum, FERC should
have estimated the amount of power-plant carbon emissions
that the pipelines will make possible.
An agency conducting a NEPA review must consider not
only the direct effects, but also the indirect environmental
effects, of the project under consideration. See 40 C.F.R.
§ 1502.16(b). “Indirect effects” are those that “are caused by
the [project] and are later in time or farther removed in
distance, but are still reasonably foreseeable.” Id. § 1508.8(b).
The phrase “reasonably foreseeable” is the key here. Effects
are reasonably foreseeable if they are “sufficiently likely to
occur that a person of ordinary prudence would take [them] into
account in reaching a decision.” EarthReports, Inc. v. FERC,
828 F.3d 949, 955 (D.C. Cir. 2016) (citation omitted).
What are the “reasonably foreseeable” effects of
authorizing a pipeline that will transport natural gas to Florida
power plants? First, that gas will be burned in those power
plants. This is not just “reasonably foreseeable,” it is the
project’s entire purpose, as the pipeline developers themselves
explain. See Intervenor Br. 4-5 (explaining that the project
“will provide capacity to transport natural gas to the electric
generating plants of two Florida utilities”). It is just as
foreseeable, and FERC does not dispute, that burning natural
gas will release into the atmosphere the sorts of carbon
compounds that contribute to climate change.
20
The pipeline developers deny that FERC would be the
legally relevant cause of any power plant carbon emissions, and
thus contend that FERC had no obligation to consider those
emissions in its NEPA analysis. They rely on Department of
Transportation v. Public Citizen, 541 U.S. 752 (2004), a case
involving the Federal Motor Carrier Safety Administration’s
development of safety standards for Mexican trucks operating
in the United States. The agency had proposed those standards
because the President planned to lift a moratorium on Mexican
motor carriers operating in this country. These standards would
require roadside inspections, which had the potential to create
adverse environmental effects. The agency’s EIS discussed the
effects of these roadside inspections, but Public Citizen
contended that the EIS was also required to address the
environmental effects of increased truck traffic between the
two countries. See id. at 765.
The Supreme Court sided with the agency. The Court
noted that the agency would have no statutory authority to
exclude Mexican trucks from the United States once the
President lifted the moratorium; it would only have power to
set safety rules for those trucks. See id. at 766-67. And because
the agency could not exclude Mexican trucks from the United
States, it would have no reason to gather data about the
environmental harms of admitting them. The purpose of NEPA
is to help agencies and the public make informed decisions. But
when the agency has no legal power to prevent a certain
environmental effect, there is no decision to inform, and the
agency need not analyze the effect in its NEPA review. See id.
at 770.
We recently applied the Public Citizen rule in three
challenges to FERC decisions licensing liquefied natural gas
(LNG) terminals. See Sierra Club v. FERC (Freeport), 827
21
F.3d 36 (D.C. Cir. 2016); Sierra Club v. FERC (Sabine Pass),
827 F.3d 59 (D.C. Cir. 2016); EarthReports, Inc. v. FERC, 828
F.3d 949 (D.C. Cir. 2016). Companies can export natural gas
from the United States through an LNG terminal, but such
natural gas exports require a license from the Department of
Energy. See Freeport, 827 F.3d at 40. They also require
physical upgrades to a terminal’s facilities. The Department of
Energy has delegated to FERC the authority to license those
upgrades. See id. A question presented to us in all of these cases
was whether FERC, in licensing physical upgrades for an LNG
terminal, needed to evaluate the climate-change effects of
exporting natural gas. Relying on Public Citizen, we answered
no in each case. FERC had no legal authority to consider the
environmental effects of those exports, and thus no NEPA
obligation stemming from those effects. See Freeport, 827 F.3d
at 47; accord Sabine Pass, 827 F.3d at 68-69; EarthReports,
828 F.3d at 956.
An agency has no obligation to gather or consider
environmental information if it has no statutory authority to act
on that information. That rule was the touchstone of Public
Citizen, see 541 U.S. at 767-68, and it distinguishes this case
from the LNG-terminal trilogy. Contrary to our dissenting
colleague’s view, our holding in the LNG cases was not based
solely on the fact that a second agency’s approval was
necessary before the environmental effect at issue could
occur. 8 Rather, Freeport and its companion cases rested on the
8
We also note that Florida Power & Light, which expects to be
one of the pipelines’ two primary customers, represented to FERC
that “its commitments on Sabal Trail’s and Florida Southeast’s
systems are to provide gas to existing natural gas-fired plants.”
Certificate Order ¶ 85, J.A. 1100. So even if the dissent were correct
that Florida regulators’ authority over power-plant construction
excuses FERC from considering emissions from new or expanded
22
premise that FERC had no legal authority to prevent the
adverse environmental effects of natural gas exports. See
Freeport, 827 F.3d at 47.
This raises the question: what did the Freeport court mean
by its statement that FERC could not prevent the effects of
exports? After all, FERC did have legal authority to deny an
upgrade license for a natural gas export terminal. See Freeport,
827 F.3d at 40-41. And without such an upgrade license,
neither gas exports nor their environmental effects could have
occurred.
The answer must be that FERC was forbidden to rely on
the effects of gas exports as a justification for denying an
upgrade license. Cf. Motor Vehicle Mfrs. Ass’n of U.S. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (explaining
that an agency acts arbitrarily and capriciously if it makes a
decision based on “factors which Congress had not intended it
to consider”). The holding in Freeport, then, turned not on the
question “What activities does FERC regulate?” but instead on
the question “What factors can FERC consider when regulating
in its proper sphere?” In the LNG cases, FERC was acting not
on its own statutory authority but under a narrow delegation
from the Department of Energy. See Freeport, 827 F.3d at 40-
41. Thus, the agency would have acted unlawfully had it
refused an upgrade license on grounds that it did not have
delegated authority to consider. See State Farm, 463 U.S. at 43.
Here, FERC is not so limited. Congress broadly instructed
the agency to consider “the public convenience and necessity”
power plants, that argument would not apply to the significant
portion of these pipelines’ capacity that is earmarked for existing
plants.
23
when evaluating applications to construct and operate interstate
pipelines. See 15 U.S.C. § 717f(e). FERC will balance “the
public benefits against the adverse effects of the project,” see
Minisink Residents for Envtl. Pres. & Safety v. FERC, 762 F.3d
97, 101-02 (D.C. Cir. 2014) (internal quotation marks omitted),
including adverse environmental effects, see Myersville
Citizens for a Rural Cmty. v. FERC, 783 F.3d 1301, 1309 (D.C.
Cir. 2015). Because FERC could deny a pipeline certificate on
the ground that the pipeline would be too harmful to the
environment, the agency is a “legally relevant cause” of the
direct and indirect environmental effects of pipelines it
approves. See Freeport, 827 F.3d at 47. Public Citizen thus did
not excuse FERC from considering these indirect effects. 9
FERC next raises a practical objection, arguing that it is
impossible to know exactly what quantity of greenhouse gases
will be emitted as a result of this project being approved. True,
that number depends on several uncertain variables, including
the operating decisions of individual plants and the demand for
electricity in the region. But we have previously held that
NEPA analysis necessarily involves some “reasonable
forecasting,” and that agencies may sometimes need to make
educated assumptions about an uncertain future. See Del.
Riverkeeper, 753 F.3d at 1310. Indeed, FERC has already
estimated how much gas the pipelines will transport: about one
9
The dissent contends that if FERC refused to approve these
pipelines, Florida utilities would find a way to deliver an equivalent
amount of natural gas to the state regardless. See Dissenting Op. 7.
This argument, however, does not bear on the question whether
FERC is legally authorized to consider downstream environmental
effects when evaluating a Section 7 certificate application. In any
case, the record suggests that there is no other viable means of
delivering the amount of gas these pipelines propose to deliver. See
J.A. 920-25.
24
million dekatherms (roughly 1.1 billion cubic feet) per day.
The EIS gave no reason why this number could not be used to
estimate greenhouse-gas emissions from the power plants, and
even cited a Department of Energy report that gives emissions
estimates per unit of energy generated for various types of
plant.
We conclude that the EIS for the Southeast Market
Pipelines Project should have either given a quantitative
estimate of the downstream greenhouse emissions that will
result from burning the natural gas that the pipelines will
transport or explained more specifically why it could not have
done so. As we have noted, greenhouse-gas emissions are an
indirect effect of authorizing this project, which FERC could
reasonably foresee, and which the agency has legal authority to
mitigate. See 15 U.S.C. § 717f(e). The EIS accordingly needed
to include a discussion of the “significance” of this indirect
effect, see 40 C.F.R. § 1502.16(b), as well as “the incremental
impact of the action when added to other past, present, and
reasonably foreseeable future actions,” see WildEarth
Guardians, 738 F.3d at 309 (quoting 40 C.F.R. § 1508.7).
Quantification would permit the agency to compare the
emissions from this project to emissions from other projects, to
total emissions from the state or the region, or to regional or
national emissions-control goals. Without such comparisons, it
is difficult to see how FERC could engage in “informed
decision making” with respect to the greenhouse-gas effects of
this project, or how “informed public comment” could be
possible. See Nevada, 457 F.3d at 93; see also WildEarth
Guardians, 738 F.3d at 309 (accepting an agency’s contention
that the “estimated level of [greenhouse-gas] emissions can
serve as a reasonable proxy for assessing potential climate
change impacts, and provide decision makers and the public
25
with useful information for a reasoned choice among
alternatives”).
We do not hold that quantification of greenhouse-gas
emissions is required every time those emissions are an indirect
effect of an agency action. We understand that in some cases
quantification may not be feasible. See, e.g., Sierra Club v. U.S.
Dep’t of Energy, --- F.3d ---, No. 15-1489, slip op. at 22 (D.C.
Cir. Aug. 15, 2017). But FERC has not provided a satisfactory
explanation for why this is such a case. We understand that
“emission estimates would be largely influenced by
assumptions rather than direct parameters about the project,”
see J.A. 916, but some educated assumptions are inevitable in
the NEPA process, see Scientists’ Inst. for Pub. Info. v. Atomic
Energy Comm’n, 481 F.2d 1079, 1092 (D.C. Cir. 1973). And
the effects of assumptions on estimates can be checked by
disclosing those assumptions so that readers can take the
resulting estimates with the appropriate amount of salt. See
WildEarth Guardians, 738 F.3d at 309 (approving an EIS that
took this approach).
Nor is FERC excused from making emissions estimates
just because the emissions in question might be partially offset
by reductions elsewhere. We thus do not agree that the EIS was
absolved from estimating carbon emissions by the fact that
some of the new pipelines’ transport capacity will make it
possible for utilities to retire dirtier, coal-fired plants. The
effects an EIS is required to cover “include those resulting from
actions which may have both beneficial and detrimental
effects, even if on balance the agency believes that the effect
will be beneficial.” 40 C.F.R. § 1508.8. In other words, when
an agency thinks the good consequences of a project will
outweigh the bad, the agency still needs to discuss both the
good and the bad. In any case, the EIS itself acknowledges that
26
only “portions” of the pipelines’ capacity will be employed to
reduce coal consumption. See J.A. 916. An agency
decisionmaker reviewing this EIS would thus have no way of
knowing whether total emissions, on net, will be reduced or
increased by this project, or what the degree of reduction or
increase will be. In this respect, then, the EIS fails to fulfill its
primary purpose.
We also recognize that the power plants in question will
be subject to “state and federal air permitting processes.” J.A.
917. But even if we assume that power plants’ greenhouse-gas
emissions will be subject to regulation in the future, see Exec.
Order No. 13,783, § 4(a), 82 Fed. Reg. 16,093, 16,095 (Mar.
28, 2017) (instructing the EPA administrator to consider
“whether to revise or withdraw” federal regulation of these
emissions), the existence of permit requirements overseen by
another federal agency or state permitting authority cannot
substitute for a proper NEPA analysis. See Calvert Cliffs’
Coordinating Comm. v. Atomic Energy Comm’n, 449 F.2d
1109, 1122-23 (D.C. Cir. 1971). In any event, FERC quantified
the project’s expected emissions of other air pollutants, despite
the fact that the project will presumably comply with the
requirements of the Clean Air Act and state air-pollution laws.
Our discussion so far has explained that FERC must either
quantify and consider the project’s downstream carbon
emissions or explain in more detail why it cannot do so. Sierra
Club proposes a further analytical step. The EIS might have
tried to link those downstream carbon emissions to particular
climate impacts, like a rise in the sea level or an increased risk
of severe storms. The EIS explained that there is no standard
methodology for making this sort of prediction. Cf. WildEarth
Guardians, 738 F.3d at 309 (“[C]urrent science does not allow
for the specificity demanded” by environmental challengers.).
27
In its rehearing request, Sierra Club asked FERC to convert
emissions estimates to concrete harms by way of the Social
Cost of Carbon. This tool, developed by an interagency
working group, attempts to value in dollars the long-term harm
done by each ton of carbon emitted. But FERC has argued in a
previous EIS that the Social Cost of Carbon is not useful for
NEPA purposes, because several of its components are
contested and because not every harm it accounts for is
necessarily “significant” within the meaning of NEPA. See
EarthReports, 828 F.3d at 956. We do not decide whether those
arguments are applicable in this case as well, because FERC
did not include them in the EIS that is now before us. On
remand, FERC should explain in the EIS, as an aid to the
relevant decisionmakers, whether the position on the Social
Cost of Carbon that the agency took in EarthReports still holds,
and why.
C
GBA Associates alleges two further flaws in the EIS, but
we find neither charge persuasive.
First, the landowners contend that “FERC has erroneously
limited the scope of its examination of alternatives” to the
proposed project. GBA Assocs. Br. 21. However, GBA
provides no arguments in support of this claim, nor does it cite
any reasonable alternatives that FERC failed to consider. As
the agency explained, the EIS considered, and ultimately
rejected, twelve major route alternatives, as well as the “no
action” alternative. We defer to the agency’s discussion of
alternatives, and uphold it “so long as the alternatives are
reasonable and the agency discusses them in reasonable detail.”
Citizens Against Burlington, 938 F.2d at 196. GBA has given
us no reason to reach any other conclusion here.
28
GBA also accuses FERC of giving too little consideration
to the safety risks involved in the construction of the pipeline,
and specifically to the fact that in some places, new pipeline
will cross, or run alongside, existing pipeline. As GBA’s own
brief recognizes, though, the EIS recognized and discussed the
risk of pipeline crossings, ultimately concluding that some
crossings were necessary to minimize impacts on natural
resources and homes. GBA’s only response is that commenters,
including the owner of one of the existing pipelines, submitted
letters to FERC expressing safety concerns. But the EIS
responded to those comments, and GBA does not explain why
the responses were insufficient. Again, NEPA does not require
a particular substantive result, like the elimination of all
pipeline crossings; it only requires the agency to take a “hard
look” at the problem. This FERC has done.
IV
All of these pipelines, of course, are being built for a
reason: to make a profit for their shareholders, and their
shareholders’ shareholders. But the profits they can make are
constrained by the Natural Gas Act, the “fundamental purpose”
of which “is to protect natural gas consumers from the
monopoly power of natural gas pipelines.” Nat’l Fuel Gas
Supply Corp. v. FERC, 468 F.3d 831, 833 (D.C. Cir. 2006).
FERC carries out that purpose by, among other duties,
regulating the rates that a newly authorized pipeline can charge
its customers. See Atl. Ref. Co. v. Pub. Serv. Comm’n, 360 U.S.
378, 388-91 (1959). The rate derives from a complicated
calculation that boils down to three elements: (1) the pipeline’s
cost of doing business; (2) the “rate base,” which is roughly the
total value of the pipeline’s assets; and (3) a rate of return,
calculated as a percentage of the rate base, that is “sufficient to
29
ensure that pipeline investors are fairly compensated.” See N.C.
Utils. Comm’n v. FERC (NCUC), 42 F.3d 659, 661 (D.C. Cir.
1994). These three factors, together, determine the total amount
of revenue that a pipeline is entitled to earn through the rates it
charges its customers. See id. 10
Drilling down further, we can see that the rate of return
itself has two main components. Like most businesses, a
pipeline company is funded by both equity (i.e., investments
made by shareholders) and debt. See NCUC, 42 F.3d at 661. A
pipeline’s ratio of equity financing to debt financing is called
its “capital structure.” See id. Typically, equity investors will
earn a higher rate of return than debt investors (i.e., creditors)
because an equity investment is riskier. See id. at 664;
MarkWest Pioneer, LLC, 125 FERC ¶ 61,165, at ¶ 27 (2008).
Therefore, all else being equal, the more a pipeline’s financing
takes the form of equity, the greater the total amount the
pipeline will pay its investors, and the higher its rates will be.
See MarkWest, 125 FERC ¶ 61,165, at ¶ 27. At the same time,
the more indebted a pipeline is, the greater the risk to its equity
investors, and the greater the return they will expect. See
NCUC, 42 F.3d at 664. So, deciding on the capital structure,
rate of return on equity, and rate of return on debt for a pipeline
becomes a delicate balancing act.
In its original application for a Section 7 certificate, Sabal
Trail sought to design its rates based on a capital structure with
60% equity and 40% debt. It anticipated that the interest rate
10
For a highly simplified illustration, suppose that the rate base
is $1 billion and the rate of return allowed is 10%. In that case, the
pipeline can earn a total annual return of $100 million. Thus, if the
pipeline’s annual costs are $150 million, then the pipeline can collect
total annual revenues of $250 million, and can set its rates
accordingly.
30
on its debt would be 6.2%, and proposed to pay a 14% return
to its equity investors. The weighted average of those two rates
would yield an overall rate of return of 10.88%.
FERC, however, felt that a 14% rate of return on equity
was too high for a pipeline with only 40% debt. (Recall that a
high rate of return must be justified by a high investment risk,
and that pipelines with less debt are less risky for equity
investors.) The agency explained that Sabal Trail could design
its rates around a 14% return on equity if it wanted to, but only
if it also changed the proposed capital structure. With a 50%
equity/50% debt capital structure, FERC explained, a 14% rate
of return on equity would be reasonable.
Sierra Club objects to FERC’s decision to allow Sabal
Trail to base its rates on a “hypothetical capital structure.” It
argues that, having concluded that Sabal Trail’s proposed
return on equity was too high, FERC should have either cut the
rate of return or denied the pipeline a certificate altogether. We
review FERC’s capital-structure decision under the deferential
standard of the Administrative Procedure Act, and may disturb
that decision only if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” See
NCUC, 42 F.3d at 663 (quoting 5 U.S.C. § 706(2)(A)).
We think that FERC adequately explained its decision to
allow Sabal Trail to employ a hypothetical capital structure.
FERC’s job, when evaluating a proposed rate for a new
pipeline, is to see that the pipeline’s investors receive a
reasonable, but not excessive, return on their investment. See
id. at 661. The returns must be proportionate to the business
and financial risk the investors take on: more risk, more reward.
See id.; MarkWest, 125 FERC ¶ 61,165, at ¶ 27. In the case of
pipeline financing, as discussed above, the “risk” for investors
31
depends in part on the pipeline’s level of indebtedness, and the
“reward” is the return on equity. If the risk and reward are out
of alignment, there are two ways to fix the problem: decrease
the reward by lowering the return on equity, or increase the risk
by increasing the pipeline’s debt level. FERC determined that
with a 14% return on equity, and only 40% debt, the risk and
reward would be out of alignment. As FERC explained, by
imposing a hypothetical capital structure that raised the debt
level to 50%, the agency brought the risk and reward into sync.
Sierra Club’s objection stems, in part, from a
misunderstanding of FERC’s role in the rate-setting process.
FERC does not directly control either the pipeline’s return on
equity or its capital structure. FERC merely approves the initial
rates the pipeline will charge, a price that is based in part on an
anticipated return on equity and an anticipated debt level. See
NCUC, 42 F.3d at 661, 664; MarkWest, 125 FERC ¶ 61,165, at
¶¶ 26-27. So whichever methodology FERC chooses for
ensuring that risk matches reward—lowering the hypothetical
return on equity, or raising the hypothetical debt—the practical
effect is the same: FERC requires the pipeline to charge a lower
rate than it had originally requested.
Nothing in our precedent is to the contrary. Sierra Club
claims that in NCUC we disapproved FERC’s use of a
hypothetical capital structure. That’s true, but our reasoning
there is inapposite here. In that case FERC had used a
hypothetical capital structure to increase, rather than decrease,
the rates the pipeline could charge, and to “mask an otherwise
anomalous[ly high] return as something more appealing.” See
42 F.3d at 664. We expressly recognized, however, that FERC
is allowed to do the opposite: use a hypothetical capital
structure to decrease a pipeline’s proposed rates, in the interest
of consumer protection. See id. FERC has done just that here.
32
FERC also acted consistently with its own precedent. Its
approach in this case was identical to its order in MarkWest.
See 125 FERC ¶ 61,165, at ¶¶ 26-27. There, too, a pipeline
proposed a 14% return on equity and a capital structure with
60% equity and 40% debt. FERC saw the proposed return on
equity as too high, and rectified the situation by applying a
hypothetical capital structure with 50% equity and 50% debt.
See id. Sierra Club also points to Panhandle Eastern Pipe Line
Co., 71 FERC ¶ 61,228 (1995), where FERC explained that its
“policy is to use the actual capital structure of the entity that
does the financing for the regulated pipeline,” id. at 61,827
(emphasis added). But in Panhandle Eastern FERC promoted
a flexible approach, noting that it “may use a different capital
structure where the actual capital structure is not representative
of the pipeline’s risk profile.” See id. at 61,828. Panhandle
Eastern was also decided under section 4 of the Act (which
governs existing pipelines), rather than section 7 (new
pipelines), and so is silent on what to do when a pipeline does
not yet have an “actual capital structure.” Id. at 61,822, 61,827-
28. Pine Needle LNG Co., 77 FERC ¶ 61,229 (1996), is also
cited by Sierra Club but supports FERC’s position, because it
confirms that FERC has the option to “resort to a hypothetical
capital structure if the equity ratio of the actual capitalization is
abnormally high,” id. at 61,916.
Though we see nothing arbitrary or capricious in FERC’s
choice to use a hypothetical capital structure in rate-setting,
substantial evidence must support the capital structure FERC
ultimately uses in the rate calculation, hypothetical or not. See
NCUC, 42 F.3d at 663. FERC explained that a 14% return on
equity, combined with a 50% equity/50% debt capital structure,
was justified because FERC had approved the same
combination of capital structure and return on equity in prior
33
cases. We confess to being skeptical that a bare citation to
precedent, derived from another case and another pipeline,
qualifies as the requisite “substantial evidence.” See NCUC, 42
F.3d at 664 (citing Maine Pub. Serv. Co. v. FERC, 964 F.2d 5,
9 (D.C. Cir. 1992), for the proposition that “FERC’s use of a
particular percentage in a ratemaking calculation was not
adequately justified by citation of a prior use of the same
percentage without further reasoning or explanation”).
However, Sierra Club does not make this argument in its
opening brief, confining itself to attacking the use of a
hypothetical capital structure more generally. See Sierra Club
Opening Br. 43 (“FERC has not stated an adequate explanation
for allowing a high rate of return based upon a hypothetical
capital structure.”); see also, e.g., Fox v. Gov’t of Dist. of
Columbia, 794 F.3d 25, 30 (D.C. Cir. 2015) (“[W]here a
litigant has forfeited an argument by not raising it in the
opening brief, we need not reach it.”). On the arguments
presented to us, we see no basis for setting aside FERC’s
ratemaking determination.
V
We turn to GBA’s two remaining arguments, both of
which we find unavailing.
The landowners challenge FERC’s conclusion that the
Southeast Market Pipelines Project will serve the public
convenience and necessity. As mentioned previously, a finding
that a proposed natural-gas pipeline “is or will be required by
the present or future public convenience and necessity” is a
prerequisite for FERC certification. See 15 U.S.C. § 717f(e).
The “public convenience and necessity” analysis has two
components. First, the applicant must show that the project will
34
“stand on its own financially” because it meets a “market
need.” See Myersville, 783 F.3d at 1309 (internal quotation
marks omitted). The applicant can make this showing by
presenting evidence of “preconstruction contracts” for gas
transportation service. If FERC finds market need, it will then
proceed to balance the benefits and harms of the project, and
will grant the certificate if the former outweigh the latter. See
id.
The landowner petitioners take issue with FERC’s market-
need analysis, alleging that this project serves only the profit
motive of the pipeline developers, rather than any public need.
See GBA Opening Br. 28. That argument misunderstands our
test. The criterion is “market need”—whether the pipelines will
be self-supporting—which the applicants here satisfied by
showing that 93% of their capacity has already been contracted
for. The landowners also assert that the pipeline will be
“redundant as it largely parallels existing pipelines,” see GBA
Opening Br. 29, but as FERC found, and the petitioners do not
refute, the “expansion of existing pipelines will not satisfy the
identified need,” see J.A. 1101.
The landowner petitioners also assert that FERC violated
the Government in the Sunshine Act, 5 U.S.C. § 552b, by
approving the pipelines’ certificates via notational voting, a
procedure where the members of a multimember agency cast
their votes individually and separately, rather than at a public
meeting. But we have expressly approved of notational voting,
and held it to be consistent with the Sunshine Act, on multiple
occasions. See R.R. Comm’n of Tex. v. United States, 765 F.2d
221, 230-31 (D.C. Cir. 1985) (citing cases). “The Sunshine Act
does not require that meetings be held in order to conduct
agency business; rather, that statute requires only that, if
meetings are held, they be open to the public.” Id. at 230
 35
(emphasis added). GBA also suggests that there should be a
presumption that meetings are required when controversial
issues are under consideration, but we have rejected that exact
argument as well. See id.
VI
The petition for review in No. 16-1329 is granted. The
orders under review are vacated and remanded to FERC for the
preparation of an environmental impact statement that is
consistent with this opinion. The petition for review in No. 16-
1387 is denied.
So ordered.
BROWN, Circuit Judge, concurring in part and dissenting
in part: I join today’s opinion on all issues save the Court’s
decision to vacate and remand the pipeline certificates on the
issue of downstream greenhouse emissions. Case law is clear:
When an agency “‘has no ability to prevent a certain effect due
to’ [its] ‘limited statutory authority over the relevant action[],’
then that action ‘cannot be considered a legally relevant
cause’” of an indirect environmental effect under the National
Environmental Policy Act (“NEPA”). Sierra Club (Freeport)
v. FERC, 827 F.3d 36, 47 (D.C. Cir. 2016) (quoting Dep’t of
Transp. v. Pub. Citizen, 541 U.S. 752, 770 (2004)). Thus, when
the occurrence of an indirect environmental effect is contingent
upon the issuance of a license from a separate agency, the
agency under review is not required to address those indirect
effects in its NEPA analysis. Although this case seems
indistinguishable from earlier precedent, the Court now insists
the action taken by the Federal Energy Regulatory Commission
(“FERC” or “the Commission”) is the cause of an
environmental effect, even though the agency has no authority
to prevent the effect. But see Pub. Citizen, 541 U.S. at 767
(holding “but for” causation is insufficient to make an agency
responsible for a particular effect under NEPA). More
significantly, today’s opinion completely omits any discussion
of the role Florida’s state agencies play in the construction and
expansion of power plants within the state—a question that
should be dispositive. Because the Court’s holding is legally
incorrect and contravenes our duty to examine all arguments
presented, I respectfully dissent.
When examining a NEPA claim, our role is limited to
ensuring the relevant agency took a “hard look at the
environmental consequences” of its decisions and “adequately
considered and disclosed the environmental impact of its
actions.” Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462
U.S. 87, 97–98 (1983). We examine the agency’s
determinations under the “deferential rule of reason,” which
governs which environmental impacts the agency must discuss
2
and the “extent to which it must discuss them.” WildEarth
Guardians v. Jewell, 738 F.3d 298, 310 (D.C. Cir. 2013).
FERC thus has broad discretion to determine “whether and to
what extent to [discuss environmental impacts] based on the
usefulness of any new potential information to [its]
decisionmaking process.” Pub. Citizen, 541 U.S. at 767. Here,
FERC declined to engage in an in-depth examination of
downstream greenhouse gas emissions because there is no
causal relationship between approval of the proposed pipelines
and the downstream greenhouse emissions; and, even if a
causal relationship exists, any additional analysis would not
meaningfully contribute to its decisionmaking. Both
determinations were reasonable and entitled to deference.
Regarding causation, the Court is correct that NEPA
requires an environmental analysis to include indirect effects
that are “reasonably foreseeable,” Freeport, 827 F.3d at 46, but
it misunderstands what qualifies as reasonably foreseeable.
The Court blithely asserts it is “not just the journey,” it is “also
the destination.” Maj. Op. at 18. In fact, NEPA is a procedural
statute that is all about the journey. It compels agencies to
consider all environmental effects likely to result from the
project under review, but it “does not dictate particular
decisional outcomes.” Sierra Club v. U.S. Army Corps of
Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015) (emphasis added).
The statute therefore “requires a reasonably close causal
relationship between the environmental effect and the alleged
cause” that is “akin to proximate cause in tort law.” Pub.
Citizen, 541 U.S. at 754, 767. Thus, the fact that the
Commission’s action is a “but for” cause of an environmental
effect is insufficient to make it responsible for a particular
environmental effect. Id. Instead, the effect must be
“sufficiently likely to occur that a person of ordinary prudence
would take it into account in reaching a decision.” Freeport,
827 F.3d at 47. There is a further caveat: An effect the agency
3
is powerless to prevent does not fall within NEPA’s ambit.
Here, the Commission explained in its denial of rehearing that
any “environmental effects resulting from end use emissions
from natural gas consumption are generally neither caused by
a proposed pipeline (or other natural gas infrastructure) project
nor are they reasonably foreseeable consequences of our
approval of an infrastructure project.” JA 1330. FERC’s
conclusion is both logical and consistent with this Court’s
precedent. While the Court concludes FERC’s approval of the
proposed pipelines will be the cause of greenhouse gas
emissions because a significant portion of the natural gas
transported through the pipeline will be burned at power plants,
see Maj. Op. at 19, the truth is that FERC has no control over
whether the power plants that will emit these greenhouse gases
will come into existence or remain in operation.
In several recent cases, petitioners sought review of a
downstream environmental effect that fell within the oversight
of another agency. We held the occurrence of a downstream
environmental effect, contingent upon the issuance of a license
from another agency with the sole authority to authorize the
source of those downstream effects, cannot be attributed to the
Commission; its actions “cannot be considered a legally
relevant cause of the effect for NEPA purposes.” See Freeport,
827 F.3d at 47; Sierra Club (Sabine Pass) v. FERC, 827 F.3d
59, 68 (D.C. Cir. 2016); EarthReports, Inc. v. FERC, 828 F.3d
949, 952 (D.C. Cir. 2016); see also Sierra Club v. FERC, 672
F. App’x 38, 39 (D.C. Cir. 2016). In Freeport, for example,
the petitioners argued the Commission failed to adequately
consider the downstream greenhouse gas emissions that would
result from increased exports of natural gas because the
Commission authorized construction of a natural gas export
facility. We said the Commission’s NEPA analysis did not
have to address these downstream effects because the
Department of Energy (“DOE”) had the “sole authority to
4
license the export of any natural gas going through [the export
facility].” See Freeport, 827 F.3d at 47; see also EarthReports,
828 F.3d at 955. Relying on binding precedent from the
Supreme Court, we reasoned causation could not exist where
an agency “‘has no ability to prevent a certain effect due to’
that agency’s ‘limited statutory authority over the relevant
action.’” Freeport, 827 F.3d at 47 (quoting Pub. Citizen, 541
U.S. at 770) (alteration omitted); see also EarthReports, 828
F.3d at 955.
This case presents virtually identical circumstances.
Under the Florida Electrical Power Plant Siting Act, “a power
plant cannot be built unless a site certification is obtained” from
the Florida Power Plant Siting Board (“the Board”). Ecodyne
Cooling Div. of Ecodyne Corp. v. City of Lakeland, 893 F.2d
297, 299 (11th Cir. 1990) (citing Fla. Stat. §§ 403.506,
403.511). “Such certification constitutes the sole license for a
power plant’s construction and operation.” Id. (citing Fla. Stat.
§ 403.511); see also Seminole Tribe of Fla. v. Hendry Cty., 114
So. 3d 1073, 1075 (Fla. Dist. Ct. App. 2013) (“It is clear from
this statutory language that the [Florida Electrical Power Plant
Siting Act] is a centrally coordinated, one-stop licensing
process.”). Accordingly, no power plant is built or expanded
in the state of Florida—and consequently no greenhouse gases
are emitted from Florida power plants—without the Board’s
approval. See Fla. Stat. § 403.506(1) (stating no power plant
may be constructed or expanded “without first obtaining
certification” from the Board). This breaks the chain of
causation. See Pub. Citizen, 541 U.S. at 754 (analogizing the
NEPA causal relationship to “proximate cause in tort law”).
NEPA does not require FERC to address indirect
environmental effects resulting from the Board’s licensing
decision. See Freeport, 827 F.3d at 47–48 (holding the
Commission need not address downstream environmental
effects if “triggering [the] chain of events” leading to those
5
effects requires the “critical . . . intervening action” of another
agency).
Despite this clearly-controlling case law and the exclusive
authority of the state Board to license the construction and
expansion of power plants in Florida, the Court concludes
FERC’s approval of the pipeline is a “legally relevant cause”
of the greenhouse gas emissions from the Florida power plants.
See Maj. Op. at 23. But its attempt to explain why NEPA
operates more expansively when applied to pipelines compared
to export terminals, as well as its arguments as to why the
Florida Board should be treated differently than DOE under
NEPA, are both ultimately unpersuasive. Both projects qualify
as “major [f]ederal actions significantly affecting the quality of
the human environment,” 42 U.S.C. § 4332(C), so there is no
reason why NEPA’s requirement to consider indirect
environmental effects would not apply equally to both.
Moreover, nothing in the statutory language empowering the
Commission to regulate export terminals and pipelines
suggests the Commission’s authority is more limited in one
circumstance than another. Congress has granted the
Commission “the exclusive authority to approve or deny an
application for the siting, construction, expansion, or operation
of an [export] terminal,” 15 U.S.C. § 717b(e)(1), and to impose
any conditions on those terminals the Commission finds to be
“necessary or appropriate,” id. § 717b(e)(3)(A). Thus, the
Commission has the power to approve or deny the construction
and operation of export terminals subject to any conditions it
wishes to impose. Likewise, Congress requires any applicant
seeking to construct or extend natural gas transportation
facilities to obtain a “certificate of public convenience and
necessity” from the Commission. Id. § 717f(c)(1)(A). The
Commission “shall” issue a certificate if “the applicant is able
and willing properly to do the acts and to perform the service
proposed” and if the proposed service or construction “is or
6
will be required by the present or future public convenience and
necessity.” Id. § 717f(e). FERC also has the “power to attach
to the issuance of the certificate . . . such reasonable terms and
conditions as the public convenience and necessity may
require.” Id. Accordingly, nothing in the text of either statute
empowers the Commission to entirely deny the construction of
an export terminal or the issuance of a certificate based solely
on an adverse indirect environmental effect regulated by
another agency. See id. §§ 717b(e), 717f(e).
The actual distinction between this case and the DOE cases
discussed above is doctrinally invisible. We stated in Freeport
that “[i]n the specific circumstances where . . . an agency has
no ability to prevent a certain effect due to that 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.” 827 F.3d at 47. Those “specific
circumstances” exist here. FERC’s statutory authority is
limited by the fact that the Board, not FERC, has the “sole
authority” to authorize or prohibit the construction or
expansion of power plants in Florida. See id. at 48. If this
Court wishes to apply the “touchstone of Public Citizen” that
“[a]n agency has no obligation to gather or consider
environmental information if it has no statutory authority to act
on that information,” Maj. Op. at 21, it must consider not only
whether an agency can act, but whether the results of such
action would have an effect on the indirect environmental
impact.
Even if the Court is correct that the Commission has the
power to deny pipeline certificates based on indirect
environmental concerns, such a denial represents the limit of
the Commission’s statutory power. Nothing would prevent the
Florida Board from independently approving the construction
or expansion of the power plants at issue. In fact, the record
7
shows the Board has already approved some of these projects
prior to the Commission reaching a decision on the proposed
pipelines. JA 910–11. Moreover, there is also nothing
preventing the Intervenors from pursuing an alternative method
of delivery to account for the same amount of natural gas.
Practical considerations point in the opposite direction. Both
the Board and the Commission have concluded Florida has a
need for additional natural gas, and nothing in today’s opinion
takes issue with those holdings. Additionally, the Commission
has concluded that the failure to take action to address this
natural-gas shortage “could result in . . . fuel shortages” and
“could lead to insufficient energy production to meet expected
demands.” JA 920. Given the dire consequences of failing to
act, it is inconceivable that the Intervenor utility companies
would stand idly by and allow a power crisis to develop. The
much more likely result is that they would simply choose
another alternative—albeit a much more inconvenient,
expensive, and possibly environmentally-harmful
alternative—in response to a denial of a certificate by FERC.
See Oral Arg. Rec. at 59:45–59:50 (stating the Intervenors are
“going to keep the lights on” regardless of whether FERC
approves the pipelines).
Thus, just as FERC in the DOE cases and the Federal
Motor Carrier Safety Administration in Public Citizen did not
have the legal power to prevent certain environmental effects,
the Commission here has no authority to prevent the emission
of greenhouse gases through newly-constructed or expanded
power plants approved by the Board. To be sure, the
Commission could make it extremely inconvenient to deliver
the same amount of natural gas to the plants, but this is an issue
of practicality, which, as conceded by the majority, is irrelevant
under NEPA. See Maj. Op. at 23. Accordingly, the
Commission was not obligated under NEPA to discuss
8
downstream greenhouse gas emissions, and I would deny the
entire petition for review.