Sierra Club v. DOESierra Club v. DOE
Moneen Nasmith argued the cause for petitioner. With her on the briefs were Erin Colón, Jason C. Rylander, Nathan Matthews, and Ann Jaworski.
John L. Smeltzer, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Todd Kim, Assistant Attorney General, and Justin D. Heminger, Attorney.
Howard L. Nelson argued the cause for intervеnors. With him on the joint brief were Jennifer Brough and Kenneth M. Minesinger.
Before: WALKER and GARCIA, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge RANDOLPH.
RANDOLPH, Senior Circuit Judge: No person may build or operate facilities in the United States for the purpose of exporting domestic natural gas without the authorization of FERC – the Federal Energy Regulatory Commission.1 And no person
The statute governing natural gas exports,
In 2014, the Alaska LNG3 Project4 sought the Energy Department‘s authorization to export up to twenty million metric tons of LNG per annum for thirty years. See 79 Fed. Reg. 55,764 (Sept. 17, 2014). Within a short time, and in compliance with the Natural Gаs Act, the Department authorized the Project to export LNG to free-trade countries.5 Dep‘t of Energy, Order No. 3554, Dkt. 14-96-LNG (Nov. 21, 2014). That final Order, issued on November 21, 2014, is not at issue in this case.
A year or so later, the Energy Department authorized the Project to export Alaskan LNG to countries lacking the requisite free trade agreement but with which trade is not prohibited. Dep‘t of Energy, Order No. 3643, Dkt. 14-96-LNG (May 28, 2015). The approval оf exports to these non-free trade countries was conditional, subject to the Energy Department‘s consideration of environmental impacts, if any.
Nine years later, in April 2023, the Department issued an order approving the Project‘s export application. The Department did not find that approving this application would not be consistent with the public interest, an awkward phrasing but one in keeping with the language of section 717b(a). Dep‘t of Energy, Order No. 3643-C, Dkt. 14-96-LNG (Apr. 13, 2023).
Petitioners Sierra Club and Center for Biological Diversity, organizations that intervened at different stages in these agency proceedings, claim that the Energy Department misconceived “the public interest”
I.
To appreciate the arguments on both sides of this prоtracted controversy, additional background information is needed.
The natural gas the Project intends to export comes from the North Slope of Alaska. In cooperation with the State of Alaska,6 the Project sought FERC‘s permission to build a gas treatment plant on the North Slope, an 800-mile pipeline across the State ending in the vicinity of Cook Inlet,7 a liquefaction plant on the Kenai Peninsula,8 and a terminal for loading the LNG onto sрecially-designed, ocean-going tankers destined for foreign ports where the LNG would be “regassified” and distributed mainly for electric power generation.
FERC authorized this immense undertaking after determining that the Project‘s construction and operation would not be contrary to “the public interest.”
FERC‘s 1,500-page impact statement9 “analyzed the Project along a number of dimensions, including the potential impacts on wetlands, marine mammals, fish, drinking water, carbon dioxide levels, rivers, soils, permafrost, vegetation, the aesthetics of Denali National Park, and Alaskan socioeconomics.” Biological Diversity, 67 F.4th at 1180. The statement “evaluated alternatives to the Project and analyzed mitigation measures that could help reduce certain environmental impacts.” Id. FERC “authorized the Project subject to 165 environmental conditions” to mitigate the “range of temporary, long-term, and permanent environmental impacts” the Project might cause. Id. at 1180-81.
After its 2015 conditional approval of the Project‘s export application, the Energy Department participated in FERC‘s environmental review and adopted the March 2020 final impact statement. In August 2020 the Energy Department issued a final order approving the Project‘s export application, Dep‘t of Energy, Order No. 3643-A, Dkt. 14-96-LNG (Aug. 20, 2020), having adopted FERC‘s impact statement and “incorporat[ing] the reasoning contained in” it. Id. at 32; 85 Fed. Reg. 17,328 (Mar. 27, 2020). The Department relied on Sierra Club v. Department of Energy, 867 F.3d 189, 202-03 (D.C. Cir. 2017), to reject Sierra Club‘s arguments that it could not approvе exporting the LNG without analyzing “the impact of U.S. LNG on other fuel sources in importing countries.” Order No. 3643-A at 34. The Department concluded that “such an analysis would be too speculative to inform the public interest determination.” Id.
Sierra Club filed a Request for Rehearing in September 2020. The Energy Department withheld acting on the rehearing request until after the Presidential election and Inauguration Day, January 20, 2021. On thаt day, newly-elected President Biden issued Executive Order 13990 directing agencies to “immediately review” any of the previous administration‘s regulations, orders and other actions that might affect the environment. 86 Fed. Reg. 7037 (Jan. 25, 2021).10
“To comply” with this Executive Order 13990 and another January 2021 Executive Order, the Energy Department granted partial rehearing.11 Dep‘t of Energy Order No. 3643-B, Dkt. 14-96-LNG, at 13 (Apr. 12, 2021); see also Dep‘t of Energy, Alaska LNG Project, Final Supplemental Environmental Impact Statement, vol. 1, at 1.2.1 (Jan. 2023) (“Final SEIS“). Some two years later, the Department reported the results of its rehearing in a 275-page supplemental environmental impact statement, including appendices, issued after notice and comment. See 88 Fed. Reg. 1571 (Jan. 13, 2023). The Department reaffirmed its August 20, 2020 Order approving the Project‘s export applicatiоn with one minor modification dealing with reporting. Dep‘t of Energy, Order No. 3643-C, Dkt. 14-96-LNG, at 27 (Apr. 13, 2023).12
II.
A.
We begin our discussion of the merits with several factors that have an important bearing on our judgment.
The first is that with, respect to exporting natural gas, the Natural Gas Act is not neutral. Congress expressed a preference for permitting exports, so long as our nation has an abundance of this natural resource, as it does.13 Congress did so by
Another consideration is that petitioners’ arguments, if accepted, would give rise to regulatory dissonance. Our court has already determined that one agency in the Energy Department-FERC14–properly found that it was not inconsistent with “the public interest” to build and operate an 800-mile-long pipeline and associated facilities for the purpose of transporting and liquefying Alaskan natural gas and shipping it overseas. Yet petitioners say that it would be inconsistent with “the public interest” to do exactly what our court has already sanctioned.
It is also significant that the Energy Department, in granting rehearing in 2020 of its approval order, did not say it was doing so because of any defect in its “public interest” analysis. Nor did the Department suggest that FERC‘s impact statement, which it had adopted, failed to comply with NEPA. Instead, the Department granted rehearing and issued a supplemental impact statement in order to comply with President Biden‘s Executive Order 13990. See supra note 11. But “an executive order is not ‘law’ within the meaning of the Constitution.” California v. EPA, 72 F.4th 308, 318 (D.C. Cir. 2023). And Executive Orders are not judicially enforceable. See, e.g., Marin Aududon Soc‘y v. FAA, 121 F.4th 902, 913 (D.C. Cir. 2024); California v. EPA, 72 F.4th at 318. Section 8(c) of President Biden‘s Executive Order 13990 makes this as clear as can be: “This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.” 86 Fed. Reg. at 7042.
In addition, it is important to stress a рarticular consequence of our opinion in Biological Diversity. We held that FERC‘s impact statement-which the Energy Department properly adopted15-complied with NEPA. Biological Diversity, 67 F.4th at 1188. As intervenors point out, “principles of finality and issue preclusion” therefore leave the two petitioners-both of which were the petitioners in Biological Diversity-with little left to challenge in this case. Intervenors’ Br. 5-6, ECF No. 2054127. In FERC‘s massive environmental impact statement, the only envirоnmental impact it did not evaluate was the effect of “downstream emissions . . . when end users burn natural gas.” Biological Diversity, 67 F.4th at 1185. Our court held that because FERC had no jurisdiction over export approvals, it had no obligation under NEPA to evaluate those downstream effects. Id.16
As to those downstream impacts, the Energy Department, complying with President Biden‘s Executive Orders, conducted an additional environmental study. The supplеmental impact statement considered greenhouse gas17 emissions from exported LNG and determined that “there is inherent uncertainty regarding the particular present or future supply and demand responses that would lead to net changes in production and consumption, and associated emissions, of LNG and oil that would be produced on the North Slope in association with the Project.”18 In its finаl Order, the Department found that “there is substantial uncertainty regarding the magnitude of those environmental impacts, particularly [greenhouse gas] emissions and climate impacts. Because of the uncertainties in the global energy markets and the extent to which the Project may substitute for other emitting power generation, DOE has determined that it cannot draw a definitive conclusion about the magnitudе of climate impacts associated with Alaska LNG‘s exports.” Dep‘t of Energy, Order No. 3643-C, Dkt. 14-96-LNG, at 22 (Apr. 13, 2023).
Throughout their brief petitioners repeat, in one form or another, their objection to the Department‘s finding. They say that “the Department inflated the uncertainty regarding the Project‘s contribution to climate-changing [greenhouse gases] and claimed that uncertainty prevented it from drawing conclusions аbout the Project‘s harms.” Pet‘rs’ Br. 13. Petitioners’ objection is not well-founded.
The Energy Department confronted a classic instance of “Knightian uncertainty.”19 In simplified terms, “Knightian uncertainty” recognizes the impossibility of assigning probabilities to possible outcomes, as compared to risk assessment in which “it is possible to identify outcome[s] and assign probabilities to them.”20 It is thus understandable why petitioners do not quantify-indeеd cannot quantify-the degree of uncertainty they would deem acceptable.
In addition to Knightian uncertainty, the law of this circuit and principles of judicial review foreclose petitioners’ objection. Sierra Club v. Department of Energy was a case very much like this one, not just in name, but in its factual setting and in the parties’ arguments. 867 F.3d 189 (D.C. Cir. 2017). As here, FERC had authorized the construction and operation of LNG facilities,21 which was followed by the Energy Department‘s development of an environmental impact statement and grant of an export license. Id. at 192. As here, when the Department authorized the export of LNG it declined to offer projections based on the sort of modeling petitioners are
Judicial review here is pursuant to
In short, the impacts of downstream emissions in foreign countries are not reasonably foreseeable and so any alleged failure to quantify those impacts does not amount to a violation of NEPA. Nor does the alleged failure to weigh those impacts overcome the presumption in section 717b(a) in favor of granting export authorization.24
C.
As to upstream effects of the Prоject, petitioners contend that the Department dismissed impacts that would occur only if the Department authorized the Project. Pet‘rs’ Br. 36-38. But FERC did consider that prospect in its environmental impact statement, which the Energy Department adopted as its own. The Department‘s supplemental impact statement did not alter FERC‘s analyses. And our court in Biological Diversity ruled that FERC had complied with NEPA. 67 F.4th at 1185-86. Sierra Club and Biological Diversity were petitioners in that case and are therefore precluded from raising the arguments
* * *
We have considered and rejected petitioners’ other arguments and see no need for further discussion.
The petitions for review are denied.
Notes
(e) Page limits
(1) Environmental impact statements
(A) In general
Except as provided in subparagraph (B), an environmental impact statement shall not exceed 150 pages, not including any citations or appendices.
(B) Extraordinary complexity
An environmental impaсt statement for a proposed agency action of extraordinary complexity shall not exceed 300 pages, not including any citations or appendices.