Union of Concerned Scientists v. DOE, 998 F.3d 926

Background

Congress added §215A to the Federal Power Act (FAST Act §61003), creating the concept of Critical Electric Infrastructure Information (CEII) and authorizing FERC and DOE to designate CEII and exempt it from FOIA.
FERC issued implementing CEII regulations in 2016 (CEII 2016 Rule). DOE later issued its own CEII administrative procedures in 2020 (CEII 2020 Rule), stating it followed FERC’s criteria but adopted its own procedures.
Petitioners Union of Concerned Scientists (UCS) challenged the CEII 2020 Rule, arguing DOE exceeded statutory authority, acted arbitrarily and capriciously, violated FOIA and the Federal Records Act, risked due-process problems, unduly restricted access, and violated APA notice-and-comment requirements.
UCS asserted it would be denied access to CEII and to information that DOE would treat as non-CEII (and thus possibly return/destroy rather than produce under FOIA), and that DOE’s procedures would impose additional resource burdens.
DOE argued UCS lacked Article III standing because any loss of access was speculative and there was no concrete, imminent injury to UCS or its members.
The D.C. Circuit held UCS lacked Article III standing (its alleged informational injuries were speculative and the asserted resource drain was forfeited), and dismissed the petition for lack of jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Article III standing to bring facial challenge to CEII 2020 Rule	UCS will be denied access to information (CEII and non-CEII) under DOE’s rule that it could obtain under FERC’s rule	Any denial is speculative; no concrete, imminent injury; DOE likely will not withhold information UCS seeks	No standing; informational injuries speculative; petition dismissed for lack of jurisdiction
Access to DOE-held CEII (designation and access procedures)	DOE’s rule uses broader pre-designation criteria and more restrictive access (e.g., requiring proof that release is in the national security interest), so UCS is less likely to obtain CEII	DOE adopted FERC’s criteria and similar access procedures; no indication DOE will withhold information UCS would otherwise get	Even if DOE’s rule is more restrictive, DOE’s discretionary decisions make future denial speculative for Article III purposes
Access to non-CEII records under FOIA (return/destroy theory)	DOE’s practice to return/destroy non-CEII could prevent FOIA production of records UCS currently obtains	DOE must comply with Records Act and record-keeping rules; UCS’s scenario depends on multiple contingencies	Too many contingencies (hypothetical chain); theory is speculative and cannot support standing
Future resource drain from more burdensome procedures	UCS will incur additional person-hours and costs to comply with DOE’s procedures	This argument was not timely raised; UCS forfeited it	Forfeited: raised first in reply brief, so cannot sustain standing

Key Cases Cited

Lujan v. Defenders of Wildlife, 504 U.S. 555 (establishes Article III standing elements)
Clapper v. Amnesty International USA, 568 U.S. 398 (threatened injury must be imminent or pose a substantial risk; speculative harms insufficient)
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (a substantial-risk standard can satisfy imminence for standing)
Texas v. EPA, 726 F.3d 180 (standing requires concrete, particularized, and redressable injury)
State Nat’l Bank of Big Spring v. Lew, 795 F.3d 48 (courts reluctant to assume how agencies will exercise future discretion)
New York Reg’l Interconnect, Inc. v. FERC, 634 F.3d 581 (speculative chains of events do not confer standing)
Twin Rivers Paper Co. v. SEC, 934 F.3d 607 (issues raised first in reply brief are forfeited)
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (courts should not decide the merits while assuming the meaning of a rule at the jurisdictional stage)
Delaware Dep’t of Nat. Res. & Env’t Control v. EPA, 785 F.3d 1 (at pleading stage courts assume the plaintiff’s interpretation for certain analyses)
Howmet Corp. v. EPA, 614 F.3d 544 (preamble can inform agency intent and interpretation)