67 F.4th 1176
D.C. Cir.2023Background
- Alaska Gasline Development Corporation proposed the Alaska LNG Project: an ~800-mile, 42-inch pipeline from the North Slope to southern Alaska plus liquefaction/export facilities, intended to commercialize surplus North Slope gas for at least 30 years.
- FERC prepared a ~1,500-page Environmental Impact Statement (EIS) under NEPA, found a range of environmental impacts, and authorized the project subject to 165 environmental conditions under its delegated NGA authority.
- Petitioners (Center for Biological Diversity and Sierra Club, “CBD”) challenged the Authorization and FERC rehearing denial in the D.C. Circuit, raising NEPA and NGA public-interest claims.
- The court reviews NEPA claims under the APA’s arbitrary-and-capricious standard and enforces the NGA’s exhaustion requirement for issues raised before FERC.
- The court held some issues unexhausted (jurisdictionally barred) and denied the remainder on the merits, upholding FERC’s authorization.
Issues
| Issue | Plaintiff's Argument (CBD) | Defendant's Argument (FERC) | Held |
|---|---|---|---|
| Alternatives / No-action analysis | FERC improperly conflated true no-action and likely no-action and failed to evaluate alternatives across all impact dimensions | FERC reasonably rejected true no-action as not meeting project purpose, considered likely no-action, and need not analyze every alternative to identical depth | Upheld FERC; analysis reasonable; claim about alternate pipeline route not exhausted and dismissed |
| Social Cost of Carbon (SCC) | FERC must use SCC or otherwise quantify climate damages under NEPA and 40 C.F.R. §1502.22 | SCC methodology is not sufficiently settled or translatable into environmental-impact findings; FERC reasonably declined to use it | Upheld FERC on merits (EarthReports precedent); SCC theory under §1502.22 not exhausted before FERC and therefore jurisdictionally barred |
| Indirect GHG emissions (upstream/downstream/exports) | FERC must assess indirect emissions including effects of exports and downstream combustion | DOE controls export authorizations; FERC lacks jurisdiction over exports; downstream uses not reasonably foreseeable for Alaska-bound gas | Upheld FERC; exports are outside FERC’s NEPA obligations and Alaska-bound downstream emissions were too speculative to require analysis |
| Cook Inlet beluga impacts (vessel noise and cumulative effects) | EIS inadequately analyzed vessel noise impacts and cumulative harms to the endangered beluga population | EIS and NMFS Biological Assessment analyzed noise, acknowledged risks, and imposed mitigation; cumulative-impact analysis identified other projects and found minor cumulative effects | Upheld FERC; EIS took a ‘‘hard look’’ and imposed reasonable mitigation; cumulative analysis adequate |
| Wetlands acreage discrepancy | FERC’s wetlands impact estimate conflicts with the Corps/Applicant estimate, undermining its analysis | Differences explained by distinct scopes and methodologies; FERC consulted Corps and reconciled >99% of the gap | Upheld FERC; explanation reasonable and EIS adequate |
| NGA public-interest determination | Authorization fails the NGA public-interest standard because of NEPA deficiencies and unaddressed harms | FERC reasonably found substantial economic benefits that outweigh projected environmental impacts and followed NEPA procedures | Upheld FERC; public-interest determination reasonable and lawful |
Key Cases Cited
- Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87 (NEPA requires agencies to take a "hard look" at environmental consequences)
- EarthReports, Inc. v. FERC, 828 F.3d 949 (upholding FERC’s refusal to apply the social cost of carbon under NEPA)
- Vecinos para el Bienestar de la Comunidad Costera v. FERC, 6 F.4th 1321 (addressing applicability of NEPA methodology regulations to SCC analysis)
- Delaware Riverkeeper Network v. FERC, 753 F.3d 1304 (connected actions and cumulative-impact analysis principles)
- Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (agencies may not base NEPA decisions on effects outside their statutory authority)
- Lemon v. Geren, 514 F.3d 1312 (NEPA is procedural and does not compel particular policy outcomes)
- Minisink Residents for Env’t Preservation & Safety v. FERC, 762 F.3d 97 (courts should not "flyspeck" an EIS)
- W. Va. Pub. Servs. Comm’n v. Dep’t of Energy, 681 F.2d 847 (NGA manifests a presumption favoring facility authorization)