28 F.4th 277
D.C. Cir.2022Background
- Tennessee Gas proposed the "Upgrade Project": ~2.1 miles of pipeline plus a new compressor station in Agawam, MA to add 72,400 dekatherms/day capacity (substantial portion under contract to Columbia Gas and Holyoke).
- FERC prepared an Environmental Assessment (EA), issued a Finding of No Significant Impact (FONSI), and granted a Section 7 certificate approving the project; Commissioner Glick filed a partial dissent on climate impacts.
- Food & Water Watch and Berkshire Environmental Action Team sought rehearing and then jointly petitioned for review in this Court. FERC denied rehearing.
- Court held Food & Water Watch has Article III standing (member affidavits); Berkshire does not (affidavit lacked imminent injury). Because Berkshire lacks standing, the court cannot consider claims raised only by Berkshire before FERC.
- Main legal dispute: whether FERC’s EA complied with NEPA by (a) considering reasonably foreseeable indirect effects—particularly downstream combustion greenhouse-gas (GHG) emissions—and (b) properly assessing significance and segmentation with respect to a nearby Longmeadow project.
- Court rejected most NEPA challenges but held FERC erred by failing to quantify/consider reasonably foreseeable downstream GHG emissions given record evidence and remanded for a supplemental EA; declined to vacate the certificate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | Food & Water Watch: member affidavits show concrete aesthetic/recreational harm. | FERC: did not contest; Berkshire’s affidavit insufficient. | Food & Water Watch has standing; Berkshire lacks standing (no imminent injury). |
| Statutory jurisdiction / exhaustion (claims raised only by Berkshire) | Petitioners jointly raise claims; court may consider them. | Claims must have been raised by the specific petitioner before FERC. | Where Berkshire lacked standing, court lacks statutory jurisdiction to review claims Berkshire alone raised. |
| NEPA — upstream production indirect effects | F&W: FERC must assess upstream production effects of added capacity. | FERC: sources unknown; effects not reasonably foreseeable; would need data on new wells. | Upstream argument is jurisdictionally barred (not preserved with specificity on rehearing); court does not decide merits. |
| NEPA — downstream consumption / combustion GHGs | F&W: record (contracts, data responses) made downstream use reasonably foreseeable; FERC must quantify and consider downstream GHGs. | FERC: responses generalized; downstream retail demand variable; offsets possible; not reasonably foreseeable. | Court: record (notably contracts to Columbia Gas for Greater Springfield residential/commercial use) made downstream emissions reasonably foreseeable; remand for supplemental EA to quantify/consider downstream emissions. |
| NEPA — significance attribution of emissions (e.g., Social Cost of Carbon) | F&W: FERC should assess significance; could use tools like Social Cost of Carbon. | FERC: no universally accepted method to attribute discrete impacts; unable to determine significance. | Court: plaintiff failed to preserve specific challenges and methods before FERC; upheld FERC’s approach as not arbitrary on the preserved record. |
| NEPA — segmentation / connected actions (Longmeadow meter station) | F&W: Upgrade and Longmeadow projects should be analyzed together. | FERC: projects have independent utility, different benefits and timelines; separate analyses reasonable. | Court: FERC reasonably treated projects separately given functional independence and separate timelines. |
Key Cases Cited
- Sabal Trail Transmission, LLC v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) (downstream GHG emissions were reasonably foreseeable where purchaser and end use were identified).
- Birckhead v. FERC, 925 F.3d 510 (D.C. Cir. 2019) (downstream emissions not reasonably foreseeable where gas was known only to be headed to a broad region).
- Del. Riverkeeper Network v. FERC, 753 F.3d 1304 (D.C. Cir. 2014) (limits on improper segmentation; consider physical/functional/temporal nexus).
- City of Bos. Delegation v. FERC, 897 F.3d 241 (D.C. Cir. 2018) (NEPA review duties in pipeline context; standing/jurisdiction principles).
- Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301 (D.C. Cir. 2015) (role and scope of an Environmental Assessment).
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements).
- Summers v. Earth Island Inst., 555 U.S. 488 (2009) (court’s independent obligation to assure standing).
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (injury must be actual or imminent).
- Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87 (1983) (scope of judicial review of agency NEPA compliance).
- EarthReports, Inc. v. FERC, 828 F.3d 949 (D.C. Cir. 2016) (standard for reasonably foreseeable indirect effects).