925 F.3d 510
D.C. Cir.2019Background
- Tennessee Gas Pipeline Co. sought a FERC certificate for the Broad Run Expansion Project (2015), including Compressor Station 563 near Nashville.
- FERC issued an Environmental Assessment and granted the certificate in 2016; Concerned Citizens for a Safe Environment sought rehearing alleging NEPA violations.
- Petitioners argued FERC (1) inadequately evaluated alternatives (site choice and size) and (2) failed to consider reasonably foreseeable indirect effects from upstream production and downstream combustion (GHG emissions).
- FERC considered multiple alternative sites and factors, concluded the proposed site was reasonable, and relied on engineering review to reject a smaller station.
- FERC declined to analyze upstream production impacts and downstream combustion emissions as indirect effects, citing lack of causal specificity and infeasibility of meaningful quantification.
- The D.C. Circuit applied the arbitrary-and-capricious standard and denied the petition, finding FERC’s alternatives analysis adequate and declining to review record-development failures that were not raised before FERC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of alternatives analysis (site selection) | FERC failed to properly evaluate an environmentally superior alternative site | FERC considered 12 alternatives against 18 factors and reasonably weighted them, including eminent-domain avoidance | Court: FERC’s explanation was sufficient under NEPA; not arbitrary or capricious |
| Consideration of smaller compressor at proposed site | Station could have been smaller, reducing impacts | Engineering review showed proposed design required to meet capacity; technical matter for FERC | Court: Defer to FERC’s technical judgment; no NEPA violation |
| Upstream production (indirect effects) | Production induced by the pipeline is reasonably foreseeable and should be analyzed | No sufficiently close causal link or record evidence tying Project to specific new production; speculative | Court: Petitioners provided no record evidence; FERC’s decision not to analyze upstream effects was not arbitrary |
| Downstream combustion (GHG indirect effects) | Downstream emissions are reasonably foreseeable and must be quantified under Sierra Club | Sierra Club limited to facts where destination/use known; here destinations unknown and quantification would be speculative | Court: Sierra Club is not categorical; FERC should develop record when necessary, but petitioners failed to raise FERC’s record-development omission before the agency, so court declines to remand |
Key Cases Cited
- Nevada v. Department of Energy, 457 F.3d 78 (D.C. Cir. 2006) (arbitrary-and-capricious standard for NEPA review)
- Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87 (1983) (agency must disclose and consider environmental impacts)
- Motor Vehicle Manufacturers Ass'n v. State Farm, 463 U.S. 29 (1983) (agency must articulate rational connection between facts and choice)
- Myersville Citizens for a Rural Community, Inc. v. FERC, 783 F.3d 1301 (D.C. Cir. 2015) (EA must discuss reasonable alternatives)
- Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) (downstream combustion emissions can be reasonably foreseeable indirect effects)
- Delaware Riverkeeper Network v. FERC, 753 F.3d 1304 (D.C. Cir. 2014) (agencies must use reasonable forecasting and develop record)
- Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) (causal chain and legal relevance in NEPA analysis)
- Barnes v. U.S. Department of Transportation, 655 F.3d 1124 (9th Cir. 2011) (agency must use best efforts to obtain reasonably available information)
- Natural Resources Defense Council v. Morton, 458 F.2d 827 (D.C. Cir. 1972) (EA need not be exhaustive; must permit reasoned choice)
- Calvert Cliffs’ Coordinating Committee, Inc. v. U.S. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971) (NEPA requires case-by-case examination of factors)