United States Court of Appeals, District of Columbia Circuit
April 18, 2017
Petitions for Review of Orders of the Federal Energy
Elizabeth F. Benson argued the cause for petitioners Sierra
Club, et al. With her on the briefs was Eric Huber. Keri N.
Powell entered an appearance.
Jonathan Perry Waters argued the cause and filed the brief
for petitioners G.B.A. Associates, LLC, et al.
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.
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.
Griffith, Circuit Judge
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 primary argument is that the agency's assessment of
the environmental impact of the pipelines was inadequate. We
agree that FERC's environmental impact statement did not
contain enough information on the greenhouse-gas emissions
that will result from burning the gas that the pipelines will
carry. In all other respects, we conclude that FERC acted
properly. We thus grant Sierra Club's petition for review
and remand for preparation of a conforming environmental
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 one billion cubic feet of natural gas per day.
three segments of the project have different owners,
but they share a common purpose: to
serve Florida's growing demand for natural gas and the
electric power that natural gas can generate. At present,
only two major natural-gas pipelines serve the state, and
both are almost at capacity. Two major utilities, Florida
Power & Light and Duke Energy Florida, have already
committed to buying nearly all the gas the project will be
able to transport. Florida Power & Light claims that
without this new project, its gas needs will begin to exceed
its supply this year. But the project's developers also
indicate that the increased transport of natural gas will
make it possible for utilities to retire older, dirtier
coal-fired power plants.
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.
7 of the Natural Gas Act places these disputes into the
bailiwick of the Federal Energy Regulatory Commission (FERC),
which has jurisdiction to approve or deny the construction of
interstate natural-gas pipelines. See 15 U.S.C.
§ 717f. Before any such pipeline can be built, FERC must
grant the developer a "certificate of public convenience
and necessity, " id. § 717f(c)(1)(A), also
called a Section 7 certificate, upon a finding that the
project will serve the public interest, see id.
§ 717f(e). FERC is also empowered to attach
"reasonable terms and conditions" to the
certificate, as necessary to protect the public. Id.
A certificate holder has the ability to acquire necessary
rights-of-way from unwilling landowners by eminent domain
proceedings. See id. § 717f(h).
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 42 U.S.C. § 4332(2)(C).
FERC solicited public comment and held thirteen public
meetings on the project's environmental effects, and made
limited modifications to the project plan in response to
public concerns, before releasing a draft impact statement in
September 2015 and a final impact statement in December 2015.
In the meantime, the pipeline developers formally applied for
their Section 7 certificates in September and November 2014.
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. Order
Issuing Certificates and Approving Abandonment, Fla. Se.
Connection, LLC, 154 FERC ¶ 61, 080 (2016)
(Certificate Order). This order recognized a number of
parties as intervenors in the agency proceedings, among them
three environmental groups (Sierra Club, Flint Riverkeeper,
and Chattahoochee Riverkeeper) and two Georgia landowners
whose land Sabal Trail will cross (GBA Associates and K.
Gregory Isaacs). These parties timely sought rehearing and a
stay of construction; FERC agreed to entertain their
arguments but denied a stay. Construction on the pipelines
began in August 2016. On September 7, 2016, FERC issued its
Rehearing Order, denying rehearing and declining to rescind
the pipelines' certificates. Order on Rehearing, Fla.
Se. Connection, LLC, 156 FERC ¶ 61, 160 (2016)
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.
jurisdiction to hear these petitions under the Natural Gas
Act. See 15 U.S.C. § 717r(b). Any party to a
proceeding under the Act who is "aggrieved" by a
FERC order may petition for review of that order in our
court, provided that they first seek rehearing before FERC.
Id. § 717r(a)-(b). Sierra Club was an
intervenor in the proceedings on all three pipeline
applications, see Certificate Order App. A, and the
landowner petitioners were intervenors in the Sabal Trail
proceedings, see id.
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.
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 challenged 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.
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 construction noise will impair his enjoyment of his
daily activities, and that trees shading his house will be
permanently removed. Other Sierra Club members similarly
averred that the pipeline project will affect their homes and
daily lives. "Such credible claims of exposure to
increased noise and its disruption of daily activities,
backed up by specific factual representations in an affidavit
or declaration, are sufficient to satisfy Article III's
injury-in-fact requirement." Sierra Club, 827
F.3d at 44. And nobody disputes that the prevention of this
sort of injury is germane to Sierra Club's
conservation-oriented purposes, or cites any reason why these
individual members would need to join the petition in their
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. 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
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.
question 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 Notice of Intent to
Prepare an Environmental Impact Statement for the Planned
Southeast Market Pipelines Project, 79 Fed. Reg. 10, 793, 10,
794 (Feb. 26, 2014) (explaining that FERC would prepare a
single EIS for the three pipelines, to help the agency
determine "whether the SMP Project is in the public
convenience and necessity"). That characterization
carried through to the Certificate Order. See J.A.
1075 (describing the pipelines as "separate but
connected" and noting that the Hillabee Expansion's
purpose is to give Sabal Trail's customers access to
upstream gas supplies); J.A. 1096 (explaining that in the
absence of Sabal Trail, existing pipelines will not be able
to deliver the gas that the Florida Southeast Connection
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.
concluded that we have jurisdiction to entertain all of
petitioners' claims, we turn to the merits of those
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. 42 U.S.C. § 4332(2)(C).
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
id. § 4332(2)(C)(iii); Balt. Gas & Elec.
Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97
(1983). It also ensures that these environmental
consequences, and the agency's consideration of them, are
disclosed to the public. See WildEarth Guardians,
738 F.3d at 302. Importantly, though, NEPA "directs
agencies only to look hard at the environmental effects of
their decisions, and not to take one type of action or
another." Citizens Against Burlington, 938 F.2d
at 194. That is, the statute is primarily
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).
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