107 F.4th 1033
D.C. Cir.2024Background
- Healthy Gulf and other environmental groups sought review of the Federal Energy Regulatory Commission’s (FERC) authorization of Commonwealth LNG, LLC’s proposed liquefied natural gas export facility in Cameron Parish, Louisiana.
- The petitioners argued that FERC failed to comply with requirements under the National Environmental Policy Act (NEPA) and the Natural Gas Act (NGA) regarding environmental impacts.
- FERC had issued a Final Environmental Impact Statement (FEIS) and granted project authorization, finding most environmental impacts not significant, with visual impacts noted as significant.
- Petitioners challenged FERC’s assessments on greenhouse gas (GHG) significance, cumulative nitrogen dioxide (NO₂) effects, consideration of project alternatives, and the public interest determination.
- The D.C. Circuit reviewed FERC’s decision under the arbitrary and capricious standard of the Administrative Procedure Act (APA), and partially granted and partially denied the petitions, remanding the matter for further proceedings but not vacating the project authorization.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| GHG emissions significance determination | FERC arbitrarily failed to determine if project’s GHG are significant | No available methodology/criteria to make significance determination | FERC inadequately explained failure to determine significance; remand for further review. |
| Cumulative NO₂ emissions analysis | FERC’s cumulative effects analysis was arbitrary | Used EPA thresholds; incremental emissions are below significance thresholds | FERC's analysis was arbitrary for cumulative effects; remand for adequate analysis. |
| Consideration of project alternatives | FERC failed to consider certain feasible, reasonable alternatives | Alternatives were considered and rejected with sufficient reasoning | FERC sufficiently considered alternatives; no NEPA violation on this issue. |
| Public interest determination under NGA | Deficient environmental review led to flawed public interest finding | FERC’s determination based on FEIS and public interest | Deficient NEPA/FEIS undermines public interest finding; remand for reconsideration. |
Key Cases Cited
- EarthReports, Inc. v. FERC, 828 F.3d 949 (D.C. Cir. 2016) (agency authority and NEPA obligations for LNG projects)
- Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017) ("hard look" requirement under NEPA for environmental consequences)
- Nevada v. U.S. Dep’t of Energy, 457 F.3d 78 (D.C. Cir. 2006) (APA review for NEPA claims)
- Motor Vehicle Mfrs. Ass’n, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (rational connection required in agency reasoning)
- Indian River Cnty. v. U.S. Dep’t of Transp., 945 F.3d 515 (D.C. Cir. 2019) (deference to agency judgment in EIS preparation)
- Grand Canyon Trust v. FAA, 290 F.3d 339 (D.C. Cir. 2002) (requirement to consider cumulative impacts under NEPA)
- LeMoyne-Owen Coll. v. NLRB, 357 F.3d 55 (D.C. Cir. 2004) (agency duty to explain treatment of prior case law)