SIERRA CLUB, еt al., Petitioners v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Duke Energy Florida, LLC, et al., Intervenors
No. 16-1329 Consolidated with 16-1387
United States Court of Appeals, District of Columbia Circuit.
Argued April 18, 2017 Decided August 22, 2017
867 F.3d 1357
Jonathan Perry Waters argued the cause and filed the brief for petitioners G.B.A. Associates, LLC, et al.
Ross R. Fulton, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With him on the brief were David L. Morenoff, General Counsel, Robert H. Solomon, Solicitor, and Nicholas M. Gladd, Attorney. Anand Viswanathan, Attorney, entered an appearance.
Jeremy C. Marwell argued the cause for respondent-intervenors. With him on the brief were Michael B. Wigmore, James D. Seegers, Gregory F. Miller, P. Martin Teague, James H. Jeffries, IV, Charles L. Schlumberger, Sid J. Trant, Anna M. Manasco, Brian D. O‘Neill, Michael R. Pincus, and William Lavarco. Marc J. Ayers and Emily M. Ruzic entered appearances.
Mohammad O. Jazil and David W. Childs were on the brief for amicus curiae The Florida Reliability Coordinating Council, Inc. in support of respondent.
Before: ROGERS, BROWN, and GRIFFITH, Circuit Judges.
Opinion concurring in part and dissenting in part filed by Circuit Judge BROWN.
GRIFFITH, Circuit Judge:
Environmental groups and landowners have challenged the decision of the Federal Energy Regulatory Commission to approve the construction and operation of three new interstate natural-gas pipelines in the southeastern United States. Their
I
The Southeast Market Pipelines Project comprises three natural-gas pipelines now under construction in Alabama, Georgia, and Florida. The linchpin of the project is the Sabal Trail pipeline, which will wend its way from Tallapoosa County in eastern Alabama, across southwestern Georgia, and down to Osceola County, Florida, just south of Orlando: a journey of nearly five hundred miles. Sabal Trail will connect the other two portions of the project. The first—the Hillabee Expansion—will boost the capacity of an existing pipeline in Alabama, which will feed gas to Sabal Trail‘s upstream end for transport to Florida. At the downstream end of Sabal Trail will be the Florida Southeast Connection, which will link to a power plant in Martin County, Florida, 120 miles away. Shorter spurs will join Sabal Trail to other proposed and existing power plants and pipeline networks. By its scheduled completion in 2021, the project will be able to carry over onе billion cubic feet of natural gas per day.
The three segments of the project have different owners,1 but they share a com-
Despite these optimistic predictions, the project has drawn opposition from several quarters. Environmental groups fear that increased burning of natural gas will hasten climate change and its potentially catastrophic consequences. Landowners in the pipelines’ path object to the seizure of their property by eminent domain. And communities on the project‘s route are concerned that pipeline facilities will be built in low-income and predominantly minority areas already overburdened by industrial polluters.
Section 7 of the Natural Gas Act places these disputes into the bailiwick of the Federal Energy Regulatory Commission (FERC), which has jurisdiction to aрprove or deny the construction of interstate natural-gas pipelines. See
FERC launched an environmental review of the proposed project in the fall of 2013. The agency understood that it would need to prepare an environmental impact statement (EIS) before approving the project, as the National Environmental Policy Act of 1969 (NEPA) requires for each “major Federal action[] significantly affecting the quality of the human environment.” See
In the Certificate Order, issued on February 2, 2016, FERC granted the requested Section 7 certificates and approved construction of all three project segments, subject to compliance with various conditions not at issue here.
Both the environmental groups (collectively, “Sierra Club“) and the landowners timely petitioned our court for review of the Certificate Order and the Rehearing Order. Sierra Club argues that FERC‘s environmental impact statement failed to adequately consider the project‘s contribution to greenhouse-gas emissions and its impact on low-income and minority communities. Sierra Club also contends that Sabal Trail‘s service rates were based on an invalid methodology. The landowners allege further oversights in the EIS, dispute the public need for the project, and assert that FERC used an insufficiently transparent process to approve the pipeline certificates. Their petitions were consolidated before us.
II
We have jurisdiction to hear these petitions under the Natural Gas Act. See
A party is “aggrieved” by a FERC order if it challenges the order under NEPA and asserts an environmental harm. See Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 273-74 (D.C. Cir. 2015). A landowner forced to choose between selling to a FERC-certified developer and undergoing eminent domain proceedings is also “aggrieved” within the meaning of the Act. See B & J Oil & Gas v. FERC, 353 F.3d 71, 75 (D.C. Cir. 2004); Moreau v. FERC, 982 F.2d 556, 564 n.3 (D.C. Cir. 1993). Sierra Club falls into the former camp, and the Georgia landowners into the latter.
We also have an independent duty to ensure that at least one petitioner has standing under Article III of the Constitution. See Ams. for Safe Access v. DEA, 706 F.3d 438, 442-43 (D.C. Cir. 2013). A petitioner invoking federal-court jurisdiction has the burden to establish that she has suffered an injury in fact that is fairly traceable to the challengеd action of the defendant and “likely” to be redressed by a favorable judicial decision. WildEarth Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013). And an association, like Sierra Club, can sue on behalf of its members if at least one member would have standing to sue in her own right, the organization is suing to vindicate interests “germane to its purpose,” and nothing about the claim asserted or the relief requested requires an individual member to be a party. Sierra Club v. FERC, 827 F.3d 36, 43 (D.C. Cir. 2016). On direct review of agency action, an association can establish its standing by having its individual members submit affidavits to accompany the association‘s opening brief. See Pub. Citizen, Inc. v. Nat‘l Highway Traffic Safety Admin., 489 F.3d 1279, 1289 (D.C. Cir. 2007).
Several individual Sierra Club members submitted such affidavits, explaining how the pipeline project would harm their “concrete aesthetic and recreational interests.” WildEarth, 738 F.3d at 305. For example, one member, Robin Koon, explained that the Sabal Trail pipeline will cross his property (on an easement taken by eminent domain), that con-
Because they allege concrete injury from FERC‘s order certifying the pipeline project, and because that certification was based on an allegedly inadequate environmental impact statement, these Sierra Club members, and therefore Sierra Club itself, have standing to object to any deficiency in the environmental impact statement.2 See WildEarth Guardians, 738 F.3d at 306-08. The deficiency need not be directly tied to the members’ specific injuries. For example, Sierra Club may argue that FERC did not adequately consider the pipelines’ contribution to climate change. See id. The members’ injuries are caused by the allegedly unlawful Certificate Order, and would be redressed by vacatur of that order on the basis of any defect in the environmental impact statement. See id. at 308.3
Transco, owner of the Hillabee Expansion, argues that no Sierra Club member has alleged an injury caused by Transco‘s section of the overall project, which would suggest that Sierra Club lacks standing to seek the vacatur of Hillabee‘s certificate. Transco thus implicitly argues that the Certificate Order is severable. Under this view, if Sierra Club succeeds on the merits, but has standing to challenge only Sabal Trail‘s certificate, we could vacate only the portion of the Certificate Order pertaining to Sabal Trail, and leave the rest intact.
The questiоn whether an agency order is severable turns on the agency‘s intent. See Epsilon Elecs., Inc. v. U.S. Dep‘t of Treasury, 857 F.3d 913, 929 (D.C. Cir. 2017). “Where there is substantial doubt that the agency would have adopted the same disposition regarding the unchallenged portion if the challenged portion were subtracted, partial affirmance is improper.” Id. (quoting North Carolina v. FERC, 730 F.2d 790, 795-96 (D.C. Cir. 1984)). Since the beginning of its environmental review, FERC has treated the project as a single, integrated proposal. See
We substantially doubt that FERC would have approved the Southeast Market Pipelines Project only in part, and we especially doubt that the agency would have certified either of the other two segments if Sabal Trail were not part of the project. Because Sierra Club and the landowners have alleged injury-in-fact caused by Sabal Trail, and because the Certificate Order is not severable, both sets of petitioners have standing to challenge the Certificate Order as a whole.
Having concluded that we have jurisdiction to entertain all of petitioners’ claims, we turn to the merits of those claims.
III
Both sets of petitioners rely heavily on the National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970). NEPA “declares a broad national commitment to protecting and promoting environmental quality,” and brings that commitment to bear on the operations of the federal government. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). The statute “commands agencies to imbue their decisionmaking, through the use of certain procedures, with our country‘s commitment to environmental salubrity.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 193-94 (D.C. Cir. 1991). One of the most important procedures NEPA mandates is the preparation, as part of every “major Federal action[] significantly affecting the quality of the human environment,” of a “detailed statement” discussing and disclosing the environmental impact of the action.
This environmental impact statement, as it has come to be called, has two purposes. It forces the agency to take a “hard look” at the environmental consequences of its actions, including alternatives to its proposed course. See
The role of the courts in reviewing agency compliance with NEPA is accordingly limited. Furthermore, because NEPA does not create a private right of action, we can entertain NEPA-based challenges only under the Administrative Procedure Act and its deferential standard of review. See Theodore Roosevelt Conservation P‘ship v. Salazar, 616 F.3d 497, 507 (D.C. Cir. 2010). That is, our mandate “is ‘simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.‘” WildEarth Guardians, 738 F.3d at 308 (quoting City of Olmsted Falls v. FAA, 292 F.3d 261, 269 (D.C. Cir. 2002)). We should not “‘flyspeck’ an agency‘s environmental analysis, looking for any deficiency no matter how minor.” Nevada v. Dep‘t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006) (citation omitted).
But at the same time, we are responsible for holding agencies to the standard the statute establishes. An EIS is deficient, and the agency action it undergirds is arbitrary and capricious, if the EIS does not contain “sufficient discussion of the relevant issues and opposing viewpoints,” Nevada, 457 F.3d at 93 (quoting Nat. Res. Def. Council v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988)), or if it does not demonstrate “reasoned decisionmaking,” Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 (D.C. Cir. 2014) (quoting Found. on Econ. Trends v. Heckler, 756 F.2d 143, 154 (D.C. Cir. 1985)). The overarching question is whether an EIS‘s deficiencies are significant enough to undermine informed public comment and informed decisionmaking. See Nevada, 457 F.3d at 93. This is NEPA‘s “rule of reason.” See Dep‘t of Transp. v. Pub. Citizen, 541 U.S. 752, 767 (2004).
With those principles in mind, we direct our attention to the specific deficiencies the petitioners have alleged in the EIS for the Southeast Market Pipelines Project. As noted above, FERC prepared a single unified EIS for the project‘s three pipelines, and no party has challenged that approach. Thus, for purposes of our NEPA analysis, we will consider the project as a whole.
A
The principle of environmental justice encourages agencies to consider whether the projects they sanction will have a “disproportionately high and adverse” impact on low-income and predominantly minority communities.4 See J.A. 1353-54. Executive Order 12,898 required federal agencies to include environmental-justice analysis in their NEPA reviews, and the Council on Environmental Quality, the independent agency that implements NEPA, see
Sierra Club argues that the EIS failed to adequately take this principle into account. Like the other components of an EIS, an environmental justice analysis is measured against the arbitrary-and-capricious standard. See Cmtys. Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 689 (D.C. Cir. 2004).5 The analysis must be “reasonable and adequately explained,” but the agency‘s “choice among reasonable analytical methodologies is entitled to deference.” Id. As always with NEPA, an agency is not required to select the course of action that best serves environmental justice, only to take a “hard look” at environmental justice issues. See Latin Ams. for Social & Econ. Dev. v. Fed. Highway Admin., 756 F.3d 447, 475-77 (6th Cir. 2014). We conclude that FERC‘s discussion of environmental justice in thе EIS satisfies this standard.
The EIS explained that 83.7% of the pipelines’ proposed route would cross
FERC concluded that the various feasible alternatives “would affect a relatively similar percentage of environmental justice populations,” and that the preferred route thus would not have a disproportionate impact on those populations. See J.A. 836. The agency also independently concluded that the project would not have a “high and adverse” impact on any population, meaning, in the agency‘s view, that it could not have a “disproportionately high and adverse” impact on any population, marginalized or otherwise.6
Sierra Club contends that FERC misread “disproportionately high and adverse,” the standard for when a particular environmental effect raises an environmental-justice concern. By Sierra Club‘s lights, any effect can fulfill the test, regardless of its intensity, extent, or duration, if it is not beneficial and falls disproportionately on environmental-justice communities. But even if we assume that understanding to be correct, we cannot see how this EIS was deficient. It discussed the intensity, extent, and duration of the pipelines’ environmental effects, and also separately discussed the fact that those effects will disproportionately fall on environmental-justice communities. Recall that the EIS informed readers and the agency‘s ultimate decisionmakers that 83.7% of the pipelines’ length would be in or near environmental-justice communities. The EIS also evaluated route alternatives in part by looking at the number of environmental-justice communities each would cross, and the mileage of pipeline each would place in low-income and minority areas. FERC thus grappled with the disparate impacts of the various possible pipeline routes. Perhaps Sierra Club would have a stronger claim if the agency had refused entirely to discuss the demographics of the populations that will feel the pipelines’ effects, and had justified this refusal by pointing to the limited intensity, extent, and duration of those effects. However, as the EIS stands, we see no deficiencies serious enough to defeat the statute‘s goals of fostering well-informed decisionmaking and public comment. See Nevada, 457 F.3d at 93.
The same goes for Sierra Club‘s other arguments. The agency‘s methodology was reasonable, even where it deviated from what Sierra Club would have preferred. See Runway Expansion, 355 F.3d at 689. Take the agency‘s decision to compare the demographics along the various proposed routes to each other instead of “the gener-
Sierra Club is particularly concerned about Sabal Trail‘s plan to build a compressor station (a facility that helps “pump” gas along the pipeline, and gives off air and noise pollution while doing so) in an African American neighborhood of Albany, Dougherty County, Georgia. The agency identified environmental-justice communities by looking at the demographics of census tracts, which are county subdivisions created to organize census data. The neighborhood in question is a 100% African American census block, an even smaller census subdivision, but because it sits in the midst of a majority-white census tract, FERC did not designate it an environmental-justice community. Sierra Club‘s objection to this omission elevates form over substance. The goal of an environmental-justice analysis is satisfied if an agency recognizes and discusses a project‘s impacts on predominantly-minority communities, even if it does not formally label each such community an “environmental justice community.” FERC did recognize the existence and demographics of the neighborhoоd in question, and discussed the neighborhood extensively. The EIS listed community features, including subdivisions, schools, and churches, along with their distances from the proposed compressor station, and explained that the station‘s noise and air-quality effects on these locations were expected to remain within acceptable limits.
More persuasive is Sierra Club‘s argument that FERC disregarded the extent to which Dougherty County is already overburdened with pollution sources. A letter to FERC from four members of Georgia‘s congressional delegation cites the grim statistics: southern Dougherty County has 259 hazardous-waste facilities, 78 air-polluting facilities, 20 toxic-polluting facilities, and 16 water-polluting facilities. The EIS did not mention these existing polluters in its discussion of Dougherty County. Sierra Club thus argues that FERC inadequately considered the project‘s “cumulative impacts,” that is, its effects taken in combination with existing environmental hazards in the same area. See
Perhaps FERC could have said more, but the discussion it undertook of the cumulative impacts of the proposed route fulfilled NEPA‘s goal of guiding informed decisionmaking. The EIS acknowledged that the Sabal Trail project will generate air pollution and noise pollution in Albany, and it projected cumulative levels of both of these types of pollution from all sources in the vicinity of the compressor station, finding that both would remain below harmful thresholds.7 We are sensitive to
To sum up, the EIS acknowledged and considered the substance of all the concerns Sierra Club now raises: the fact that the Southeast Market Pipelines Project will travel primarily through low-income and minority communities, and the impact of the pipeline on the city of Albany and Dougherty County in particular. The EIS also laid out a variety of alternative approaches with potential to address those concerns, including those propоsed by petitioners, and explained why, in FERC‘s view, they would do more harm than good. The EIS also gave the public and agency decisionmakers the qualitative and quantitative tools they needed to make an informed choice for themselves. NEPA requires nothing more.
B
It‘s not just the journey, though, it‘s also the destination. All the natural gas that will travel through these pipelines will be going somewhere: specifically, to power plants in Florida, some of which already exist, others of which are in the planning stages. Those power plants will burn the gas, generating both electricity and carbon dioxide. And once in the atmosphere, that carbon dioxide will add to the greenhouse effect, which the EIS describes as “the primary contributing factor” in global climate change. J.A. 915. The next question before us is whether, and to what extent, the EIS for this pipeline project needed to discuss these “downstream” effects of the pipelines and their cargo. We conclude that at a minimum, FERC should have estimated the amount of power-plant carbon emissions that the pipelines will make possible.
An agency conducting a NEPA review must consider not only the direct effects, but also the indirect environmental effects, of the project under consideration. See
What are the “reasonably foreseeable” effects of authorizing a pipeline that will
The pipeline developers deny that FERC would be the legally relevant cause of any power plant carbon emissions, and thus contend that FERC had no obligation to consider those emissions in its NEPA analysis. They rely on Department of Transportation v. Public Citizen, 541 U.S. 752 (2004), a case involving the Federal Motor Carrier Safety Administration‘s development of safety standards for Mexican trucks operating in the United States. The agency had proposed those standards because the President planned to lift a moratоrium on Mexican motor carriers operating in this country. These standards would require roadside inspections, which had the potential to create adverse environmental effects. The agency‘s EIS discussed the effects of these roadside inspections, but Public Citizen contended that the EIS was also required to address the environmental effects of increased truck traffic between the two countries. See id. at 765.
The Supreme Court sided with the agency. The Court noted that the agency would have no statutory authority to exclude Mexican trucks from the United States once the President lifted the moratorium; it would only have power to set safety rules for those trucks. See id. at 766-67. And because the agency could not exclude Mexican trucks from the United States, it would have no reason to gather data about the environmental harms of admitting them. The purpose of NEPA is to help agencies and the public make informed decisions. But when the agency has no legal power to prevent a certain environmental effect, there is no decision to inform, and the agency need not analyze the effect in its NEPA review. See id. at 770.
We recently applied the Public Citizen rule in three challenges to FERC decisions licensing liquefied natural gas (LNG) terminals. See Sierra Club v. FERC (Freeport), 827 F.3d 36 (D.C. Cir. 2016); Sierra Club v. FERC (Sabine Pass), 827 F.3d 59 (D.C. Cir. 2016); EarthReports, Inc. v. FERC, 828 F.3d 949 (D.C. Cir. 2016). Companies can export natural gas from the United States through an LNG terminal, but such natural gas exports require a license from the Department of Energy. See Freeport, 827 F.3d at 40. They also require physical upgrades to a terminаl‘s facilities. The Department of Energy has delegated to FERC the authority to license those upgrades. See
An agency has no obligation to gather or consider environmental information if it has no statutory authority to act on that information. That rule was the touchstone of Public Citizen, see 541 U.S. at 767-68, and it distinguishes this
This raises the question: what did the Freeport court mean by its statement that FERC could not prevent the effects of exports? After all, FERC did have legal authority to deny an upgrade license for a natural gas export terminal. See Freeport, 827 F.3d at 40-41. And without such an upgrade license, neither gas exports nor their environmental effects could have occurred.
The answer must be that FERC was forbidden to rely on the effects of gas exports as a justification for denying an upgrade license. Cf. Motor Vehiclе Mfrs. Ass‘n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (explaining that an agency acts arbitrarily and capriciously if it makes a decision based on “factors which Congress had not intended it to consider“). The holding in Freeport, then, turned not on the question “What activities does FERC regulate?” but instead on the question “What factors can FERC consider when regulating in its proper sphere?” In the LNG cases, FERC was acting not on its own statutory authority but under a narrow delegation from the Department of Energy. See Freeport, 827 F.3d at 40-41. Thus, the agency would have acted unlawfully had it refused an upgrade license on grounds that it did not have delegated authority to consider. See State Farm, 463 U.S. at 43.
Here, FERC is not so limited. Congress broadly instructed the agency to consider “the public convenience and necessity” when evaluating applications to construct and operate interstate pipelines. See
FERC next raises a practical objection, arguing that it is impossible to
We conclude that the EIS for the Southeast Market Pipelines Project should have either given a quantitative estimate of the downstream greenhouse emissions that will result from burning the natural gas that the pipelines will transport or explained more specifically why it could not have done so. As we have noted, greenhouse-gas emissions are an indirect effect of authorizing this project, which FERC could reasonably foresee, and which the agency has legal authority to mitigate. See
Quantification would permit the agency to compare the emissions from this project to emissions from other projects, to total emissions from the state or the region, or to regional or national emissions-control goals. Without such comparisons, it is difficult to see how FERC could engage in “informed decision making” with respect to the greenhouse-gas effects of this project, or how “informed public comment” could be possible. See Nevada, 457 F.3d at 93; see also WildEarth Guardians, 738 F.3d at 309 (accepting an agency‘s contention that the “estimated level of [greenhouse-gas] emissions can serve as a reasonable proxy for assessing potential climate change impacts, and provide decision makers and the public with useful information for a reasoned choice among alternatives“).
We do not hold that quantification of greenhouse-gas emissions is required every time those emissions are an indirect effect of an agency action. We understand that in some cases quantification may not be feasible. See, e.g., Sierra Club v. U.S. Dep‘t of Energy, 867 F.3d 189, 202 (D.C. Cir. 2017). But FERC has not provided a satisfactory explanation for why this is such a case. We understand that “emission estimates would be largely influenced by assumptions rather than direct parameters about the project,” see J.A. 916, but some educated assumptions are inevitable in the NEPA process, see Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy Comm‘n, 481 F.2d 1079, 1092 (D.C. Cir. 1973). And the effects of assumptions on estimates can be checked by disclosing those assumptions so that readers can take the resulting estimates with the appropriate amount of salt. See WildEarth Guardians, 738 F.3d at 309 (approving an EIS that took this approach).
Nor is FERC excused from making emissions estimates just because the
We also recognize that the power plants in question will be subject to “state and federal air permitting processes.” J.A. 917. But even if we assume that power plants’ greenhouse-gas emissions will be subject to regulation in the future, see Exec. Order No. 13,783, § 4(a),
Our discussion so far has explained that FERC must either quantify and consider the project‘s downstream carbon emissions or explain in more detail why it cannot do so. Sierra Club proposes a further analytical step. The EIS might have tried to link those downstream carbon emissions to particular climate impacts, like a rise in the sea level or an increased risk of severe storms. The EIS explained that there is no standard methodology for making this sort of prediction. Cf. WildEarth Guardians, 738 F.3d at 309 (“[C]urrent science does not allow for the specificity demanded” by environmental challengеrs.). In its rehearing request, Sierra Club asked FERC to convert emissions estimates to concrete harms by way of the Social Cost of Carbon. This tool, developed by an inter-agency working group, attempts to value in dollars the long-term harm done by each ton of carbon emitted. But FERC has argued in a previous EIS that the Social Cost of Carbon is not useful for NEPA purposes, because several of its components are contested and because not every harm it accounts for is necessarily “significant” within the meaning of NEPA. See EarthReports, 828 F.3d at 956. We do not decide whether those arguments are applicable in this case as well, because FERC did not include them in the EIS that is now before us. On remand, FERC should explain in the EIS, as an aid to the relevant decisionmakers, whether the position on the Social Cost of Carbon that the agency took in EarthReports still holds, and why.
C
GBA Associates alleges two further flaws in the EIS, but we find neither charge persuasive.
First, the landowners contend that “FERC has erroneously limited the scope
GBA also accuses FERC of giving too little consideration to the safety risks involved in the construction of the pipeline, and specifically to the fact that in some places, new pipeline will cross, or run alongside, existing pipeline. As GBA‘s own brief recognizes, though, the EIS recognized and discussed the risk of pipeline crossings, ultimately concluding that some crossings were necessary to minimize impacts on natural resources and homes. GBA‘s only response is that commenters, including the owner of one of the existing pipelines, submitted letters to FERC expressing safety concerns. But the EIS responded to those comments, and GBA does not explain why the responses were insufficient. Again, NEPA does not require a particular substantive result, like the elimination of all pipeline crossings; it only requires the agency to take a “hard look” at the problem. This FERC has done.
IV
All of these pipelines, of course, are being built for a reason: to make a profit for their shareholders, and their shareholders’ shareholders. But the profits they can make are constrained by the Natural Gas Act, the “fundamental purpose” of which “is to protect natural gas consumers from the monopoly power of natural gas pipelines.” Nat‘l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 833 (D.C. Cir. 2006). FERC cаrries out that purpose by, among other duties, regulating the rates that a newly authorized pipeline can charge its customers. See Atl. Ref. Co. v. Pub. Serv. Comm‘n, 360 U.S. 378, 388-91 (1959). The rate derives from a complicated calculation that boils down to three elements: (1) the pipeline‘s cost of doing business; (2) the “rate base,” which is roughly the total value of the pipeline‘s assets; and (3) a rate of return, calculated as a percentage of the rate base, that is “sufficient to ensure that pipeline investors are fairly compensated.” See N.C. Utils. Comm‘n v. FERC (NCUC), 42 F.3d 659, 661 (D.C. Cir. 1994). These three factors, together, determine the total amount of revenue that a pipeline is entitled to earn through the rates it charges its customers. See id.10
Drilling down further, we can see that the rate of return itself has two main components. Like most businesses, a pipeline company is funded by both equity (i.e., investments made by shareholders) and debt. See NCUC, 42 F.3d at 661. A pipeline‘s ratio of equity financing to debt financing is called its “capital structure.” See
In its original application for a Section 7 certificate, Sabal Trail sought to design its rates based on a capital structure with 60% equity and 40% debt. It anticipated that the interest rate on its debt would be 6.2%, and proposed to pay a 14% return to its equity investors. The weighted average of those two rates would yield an overall rate of return of 10.88%.
FERC, however, felt that a 14% rate of return on equity was too high for a pipeline with only 40% debt. (Recall that a high rate of return must be justified by a high investment risk, and that pipelines with less debt are less risky for equity investors.) The agency explained that Sabal Trail could design its rates around a 14% return on equity if it wanted to, but only if it also changed the proposed capital structure. With a 50% equity/50% debt capital structure, FERC explained, a 14% rate of return on equity would be reasonable.
Sierra Club objects to FERC‘s decision to allow Sabal Trail to base its rates on a “hypothetical capital structure.” It argues that, having concluded that Sabal Trail‘s proposed return on equity was too high, FERC should have either cut the rate of return or denied the pipeline a certificate altogether. We review FERC‘s capital-structure decision under the deferential standard of the Administrative Procedure Act, and may disturb that decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See NCUC, 42 F.3d at 663 (quoting
We think that FERC adequately explained its decision to allow Sabal Trail to employ a hypothetical capital structure. FERC‘s job, when evaluating a proposed rate for a new pipeline, is to see that the pipeline‘s investors receive a reasonable, but not excessive, return on their investment. See id. at 661. The returns must be proportionate to the business and financial risk the investors take on: more risk, more reward. See
Sierra Club‘s objection stems, in part, from a misunderstanding of FERC‘s role in the rate-setting process. FERC does not directly control either the pipeline‘s return on equity or its capital structure. FERC merely approves the initial rates the pipeline will charge, a price that is based in part on an anticipatеd return on equity and an anticipated debt level. See NCUC, 42 F.3d at 661, 664;
Nothing in our precedent is to the contrary. Sierra Club claims that in NCUC we disapproved FERC‘s use of a hypothetical capital structure. That‘s true, but our reasoning there is inapposite here. In that case FERC had used a hypothetical capital structure to increase, rather than decrease, the rates the pipeline could charge, and to “mask an otherwise anomalous[ly high] return as something more appealing.” See 42 F.3d at 664. We expressly recognized, however, that FERC is allowed to do the opposite: use a hypothetical capital structure to decrease a pipeline‘s proposed rates, in the interest of consumer protection. See
FERC also acted consistently with its own precedent. Its approach in this case was identical to its order in
Though we see nothing arbitrary or capricious in FERC‘s choice to use a hypothetical capital structure in rate-setting, substantial evidence must support the capital structure FERC ultimately uses in the rate calculation, hypothetical or not. See NCUC, 42 F.3d at 663. FERC explained that a 14% return on equity, combined with a 50% equity/50% debt capital structure, was justified because FERC had approved the same combination of capital structure and return on equity in prior cases. We confess to being skeptical that a bare citation to precedent, derived from another case and another pipeline, qualifiеs as the requisite “substantial evidence.” See NCUC, 42 F.3d at 664 (citing Maine Pub. Serv. Co. v. FERC, 964 F.2d 5, 9 (D.C. Cir. 1992), for the proposition that “FERC‘s use of a particular percentage in a ratemaking calculation was not adequately justified by citation of a prior use of the same percentage without further reasoning or explanation“).
However, Sierra Club does not make this argument in its opening brief, confining itself to attacking the use of a hypothetical capital structure more generally. See Sierra Club Opening Br. 43 (“FERC has not stated an adequate explanation for allowing a high rate of return based upon a hypothetical capital structure.“); see also, e.g., Fox v. Gov‘t of Dist. of Columbia, 794 F.3d 25, 30 (D.C. Cir. 2015) (“[W]here a litigant has forfeited an argument by not
V
We turn to GBA‘s two remaining arguments, both of which we find unavailing.
The landowners challenge FERC‘s conclusion that the Southeast Market Pipelines Project will serve the public convenience and necessity. As mentioned previously, a finding that a proposed natural-gas pipeline “is or will be required by the present or future public convenience and necessity” is a prerequisite for FERC certification. See
The landowner petitioners take issue with FERC‘s market-need analysis, alleging that this project serves only the profit motive of the pipeline developers, rather than any public need. See GBA Opening Br. 28. That argument misunderstands our test. The criterion is “market need“—whether the pipelines will be self-supporting—which the applicants here satisfied by showing that 93% of their capacity has already been contracted for. The landowners also assert that the pipeline will be “redundant as it largely parallels existing pipelines,” see GBA Opening Br. 29, but as FERC found, and the petitioners do not refute, the “expansion of existing pipelines will not satisfy the identified need,” see J.A. 1101.
The landowner petitioners also assert that FERC violated the Government in the Sunshine Act,
VI
The petition for review in No. 16-1329 is granted. The orders under review are vacated and remanded to FERC for the preparation of an environmental impact statement that is consistent with this opinion. The petition for review in No. 16-1387 is denied.
So ordered.
BROWN, Circuit Judge, concurring in part and dissenting in part:
I join today‘s opinion on all issues save the Court‘s decision to vacate and remand the pipeline certificates on the issue of downstream greenhouse emissions. Case law is clear: When an agency “has no
When examining a NEPA claim, our role is limited to ensuring the relevant agency took a “hard look at the environmental consequences” of its decisions and “adequately considered and disclosed the environmental impact of its actions.” Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97-98 (1983). We examine the agency‘s determinations under the “deferential rule of reason,” which governs which environmental impacts the agency must discuss and the “extent to which it must discuss them.” WildEarth Guardians v. Jewell, 738 F.3d 298, 310 (D.C. Cir. 2013). FERC thus has broad discretion to determine “whether and to what extent to [discuss environmental impacts] based on the usefulness of any new potential information to [its] decisionmaking process.” Pub. Citizen, 541 U.S. at 767. Here, FERC declined to engage in an in-depth examination of downstream greenhouse gas emissions because there is no causal relationshiр between approval of the proposed pipelines and the downstream greenhouse emissions; and, even if a causal relationship exists, any additional analysis would not meaningfully contribute to its decisionmaking. Both determinations were reasonable and entitled to deference.
Regarding causation, the Court is correct that NEPA requires an environmental analysis to include indirect effects that are “reasonably foreseeable,” Freeport, 827 F.3d at 46, but it misunderstands what qualifies as reasonably foreseeable. The Court blithely asserts it is “not just the journey,” it is “also the destination.” Maj. Op. at 1371. In fact, NEPA is a procedural statute that is all about the journey. It compels agencies to consider all environmental effects likely to result from the project under review, but it “does not dictate particular decisional outcomes.” Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015) (emphasis added). The statute therefore “requires a reasonably close causal relationship between the environmental effect and the alleged cause” that is “akin to proximate cause in tort law.” Pub. Citizen, 541 U.S. at 754, 767. Thus, the fact that the Commission‘s action is a “but for” cause of an environmental effect is insufficient to make it responsible for a particular environmental effect.
In several recent cases, petitioners sought review of a downstream environmental effect that fell within the oversight of another agency. We held the occurrence of a downstream environmental effect, contingent upon the issuance of a license from another agency with the sole authority to authorize the source of those downstream effects, cannot be attributed to the Commission; its actions “cannot be considerеd a legally relevant cause of the effect for NEPA purposes.” See Freeport, 827 F.3d at 47; Sierra Club (Sabine Pass) v. FERC, 827 F.3d 59, 68 (D.C. Cir. 2016); EarthReports, Inc. v. FERC, 828 F.3d 949, 952 (D.C. Cir. 2016); see also Sierra Club v. FERC, 672 Fed.Appx. 38, 38-39 (D.C. Cir. 2016). In Freeport, for example, the petitioners argued the Commission failed to adequately consider the downstream greenhouse gas emissions that would result from increased exports of natural gas because the Commission authorized construction of a natural gas export facility. We said the Commission‘s NEPA analysis did not have to address these downstream effects because the Department of Energy (“DOE“) had the “sole authority to license the export of any natural gas going through [the export facility].” See Freeport, 827 F.3d at 47; see also EarthReports, 828 F.3d at 955. Relying on binding precedent from the Supreme Court, we reasoned causation could not exist where an agency “has no ability to prevent a certain effect due to that agency‘s ‘limited statutory authority over the relevant action.‘” Freeport, 827 F.3d at 47 (quoting Pub. Citizen, 541 U.S. at 770) (alteration omitted); see also EarthReports, 828 F.3d at 955.
This case presents virtually identical circumstances. Under the Florida Electrical Power Plant Siting Act, “a power plant cannot be built unless a site certification is obtained” from the Florida Power Plant Siting Board (“the Board“). Ecodyne Cooling Div. of Ecodyne Corp. v. City of Lakeland, 893 F.2d 297, 299 (11th Cir. 1990) (citing
Despite this clearly-controlling case law and the exclusive authority of the state Board to license the construction and expansion of power plants in Florida, the Court concludes FERC‘s approval of the pipeline is a “legally relevant cause” of the greenhouse gas emissions from the Florida power plants. See Maj. Op. at 1372. But its attempt to explain why NEPA operates more expansively when applied to pipelines compared to export terminals, as well as its arguments as to why the Florida Board should be treated differently than DOE under NEPA, are both ultimately unpersuasive. Both projects qualify as “major [f]ederal actions significantly affecting the quality of the human environment,”
The actual distinction between this case and the DOE cases discussed above is doctrinally invisible. We stated in Freeport that “[i]n the specific circumstances where ... an agency has no ability to prevent a certain effect due to that agency‘s limited statutory authority over the relevant action, then that action cannot be considered a legally relevant ‘cause’ of the effect for NEPA purposes.” 827 F.3d at 47. Those “specific circumstances” exist here. FERC‘s statutory authority is limited by the fact that the Board, not FERC, has the “sole authority” to authorize or prohibit the construction or expansion of power plants in Florida. See id. at 48. If this Court wishes to apply the “touchstone of Public Citizen” that “[a]n agency has no obligation to gather or consider environ-
Even if the Court is correct that the Commission has the power to deny pipeline certificates based on indirect environmental concerns, such a denial represents the limit of thе Commission‘s statutory power. Nothing would prevent the Florida Board from independently approving the construction or expansion of the power plants at issue. In fact, the record shows the Board has already approved some of these projects prior to the Commission reaching a decision on the proposed pipelines. J.A. 910-11. Moreover, there is also nothing preventing the Intervenors from pursuing an alternative method of delivery to account for the same amount of natural gas. Practical considerations point in the opposite direction. Both the Board and the Commission have concluded Florida has a need for additional natural gas, and nothing in today‘s opinion takes issue with those holdings. Additionally, the Commission has concluded that the failure to take action to address this natural-gas shortage “could result in ... fuel shortages” and “could lead to insufficient energy production to meet expected demands.” J.A. 920. Given the dire consequences of failing to act, it is inconceivable that the Intervenor utility companies would stand idly by and allow a power crisis to develop. The much more likely result is that they would simply choose another alternative—albeit a much more inconvenient, expensive, and possibly environmentally-harmful alternative—in response to a denial of a certificate by FERC. See Oral Arg. Rec. at 59:45-59:50 (stating the Intervenors are “going tо keep the lights on” regardless of whether FERC approves the pipelines).
Thus, just as FERC in the DOE cases and the Federal Motor Carrier Safety Administration in Public Citizen did not have the legal power to prevent certain environmental effects, the Commission here has no authority to prevent the emission of greenhouse gases through newly-constructed or expanded power plants approved by the Board. To be sure, the Commission could make it extremely inconvenient to deliver the same amount of natural gas to the plants, but this is an issue of practicality, which, as conceded by the majority, is irrelevant under NEPA. See Maj. Op. at 1373. Accordingly, the Commission was not obligated under NEPA to discuss downstream greenhouse gas emissions, and I would deny the entire petition for review.