Docket Nos. CP16-454-000, CP16-454-003, CP16-455-000, CP16-455-002, CP20-481-000
I dissent from today’s Order.[1] Through rigid application of the Commission’s stay precedents, the Order perpetuates and magnifies the injury the Commission inflicted on environmental justice (EJ) communities by failing to meet its legal obligations following the D.C. Circuit’s remand in the Vecinos case.[2] With this Order, the Commission heightens the almost impossibly steep barrier its stay precedents erect to ever finding alleged harms to human health or the environment to be irreparable. In doing so, the Commission ignores the difficulties that affected environmental justice (EJ) communities, tribes, non-governmental organizations (NGOs), and individuals face in proving harm is “certain,” “great,” “actual,” “imminent,” and “beyond remediation.”[3] As explained below, Sierra Club’s case for irreparable harm is much stronger than the Order portrays. Moreover, the Commission’s failure to meet its legal obligations to fully assess, consider, and explain the projects’ environmental impacts weighs heavily in favor of a stay because the public has a strong interest in assuring that federal agencies follow the law.[4]
At the outset, it is important to recognize that this case is fundamentally about environmental justice. The stay movants include parties who prevailed in Vecinos on two issues: (1) the Commission’s deficient analyses of the projects’ impacts on EJ communities and climate change, and (2) the Commission’s insufficient explanation of its public interest determinations under sections 3 and 7 of the Natural Gas Act (NGA) in light of those deficiencies.[5] The movants here are the City of Port Isabel, an EJ community; Vecinos para el Bienstar de la Comunidad Costera, an EJ community organization; the Carrizo Comecrudo Tribe of Texas, a Native American tribal organization; and Sierra Club, an environmental NGO advocating on its own behalf and that of the other movants. As explained below, neither these movants – nor any other potentially affected EJ communities or representatives – had any meaningful opportunity to participate in, or comment on, the Commission’s new analyses of the projects’ environmental impacts on remand. Today’s Order compounds that injury to them.
The Administrative Procedure Act (APA) establishes a broad and flexible standard for agencies to determine whether to stay their own actions: “[w]hen … justice so requires.”[6] Although nothing in the APA compels it to do so, the Commission has taken a particularly restrictive approach to stay requests – at least those predicated on alleged harm to the environment or human health. Indeed, courts have been more willing than the Commission to grant stays when environmental harms[7] or human health impacts[8] are at stake. I am aware of no case in which the Commission has granted a stay based on allegations of harm to the environment or human health. However, there are examples of the Commission granting stays when purely economic interests were at stake, even though by definition irreparable harm was absent.[9] That inconsistency alone should cause the majority to reconsider its rigid approach in this case.
Consistent with its commitment to better integrate EJ concerns in its decision-making,[10] the Commission should recognize the practical impediments that EJ communities and their representatives face in producing the type of specific evidence of harm that the Commission demands. Most lack the resources to hire environmental, medical, epidemiological, and other experts who could provide the proof the Commission apparently seeks. Moreover, it is generally the project developer that has the detailed information about the specific impacts its project will have; the Commission provides no opportunity for discovery and cross-examination in certificate cases that would bring all the relevant information to light. Here, the Commission easily could have issued data requests to Rio Grande and Rio Bravo to determine and substantiate the harms a stay could cause the companies and their customers, and what specific public benefits would be affected by a stay. Instead, as explained below, the Order relies on pure conjecture for its findings that the project sponsors, their customers, and the public will be harmed by a stay.[11] It seems that the Commission demands hard evidence from the movants while crediting bare allegations from the project developers. I cannot countenance that double standard.
Notwithstanding these impediments, movants make a much stronger case for irreparable injury than the Order acknowledges. The Order discounts many of Sierra Club’s allegations by unfairly labeling them as “generalized,” when they are actually quite specific. For example, Mr. Mancias, a member of the Sierra Club, alleges he would face an irreparable injury in the absence of a stay due to the air quality impacts of construction in an area where he regularly recreates.[12] Mr. Mancias “uses supplemental oxygen, and he is concerned that he would be particularly susceptible to harm from this pollution.”[13] His concern is based on the fact that his “respiratory symptoms are worse when the air quality where [he is] is worse.”[14] The environmental impact statement (EIS) for the project found “that construction of the Project would impact local air quality,”[15] including by the release of particulate matter and ozone precursors both during construction[16] and operation[17] of the project. Moreover, it concluded that the combined emissions from simultaneous construction, commissioning, start-up and operational activities at the LNG terminal could result in an exceedance of the National Ambient Air Quality Standards (NAAQS).[18] In its Remand Order, the Commission imposed a new air pollution and monitoring condition that it intended to prevent or reduce NAAQS violations. However, as I demonstrated in my dissents from the Remand Order and Rehearing Order, the condition is too vague and undeveloped to pass muster as effective mitigation under the National Environmental Policy Act (NEPA).[19] Thus, to the extent the Order relies on compliance with the NAAQS to reject Mr. Mancias’s claim that project-related air pollution will harm his health, it lacks the legal or factual justification to do so.[20]
Sierra Club also explains how the project construction will destroy “recreation and wildlife-viewing opportunities” its members, including Mr. Mancias, enjoy.[21] The Order suggests Sierra Club did not show that irreparable injury was likely.[22] But Sierra Club did allege that the EIS found that 182.4 acres of wetlands at the terminal site “will” be permanently destroyed which will impact “wildlife-viewing opportunities available at [the terminal site].”[23] Mr. Mancias goes bird watching and otherwise recreates at a location where he can “see the Rio Grande LNG export facility site” and expresses concern about the projects’ impacts on species in the project area.[24] Construction would eliminate wetland species on the project site, causing the exact impact Mr. Mancias explains will harm him.[25]
The Order also faults Sierra Club for not showing that “movants could not continue to recreate at the refuge or that they could not instead recreate or fish at other locations nearby.”[26] However, the Order cites no support for its suggestion that movants bear the burden of proving the inability to recreate in some alternative area to show an irreparable harm. In this respect, the Order appears to erect yet another obstacle to ever finding irreparable environmental harm. Furthermore, the Order ignores caselaw recognizing that injury to a specific resource or aesthetic interest may constitute irreparable harm notwithstanding the existence of alternative similar resources or recreational opportunities.[27]
Sierra Club also makes specific allegations of irreparable injury due to harms to local ocelots, an endangered species under the ESA. Mr. Mancias indicated that about twice a month he visits the Laguna Atascosa National Wildlife refuge to enjoy viewing wildlife, specifically including ocelots.[28] He is “concerned about the projects’ impact on these species and other species in the project area.”[29] The EIS reflects that these fears are well-founded. The EIS determined that there are three main causes of adverse impacts to ocelots: “increase in ambient sound levels,” which could drive ocelots out of limited suitable habitat,[30] loss of habitat “within the LNG Terminal site boundaries,”[31] and direct kills of ocelots through vehicular strikes during construction of the projects.[32] Although the Fish and Wildlife Service (FWS) Final Biological Opinion found that the projects are not likely to jeopardize the continued existence of the listed ocelot, movants are not required to show jeopardy to prove irreparable harm. As one court put it, “[r]equiring Plaintiffs to show jeopardy to the existence of a species in order to secure injunctive relief would stand the ESA on its head.”[33] Notwithstanding FWS’s finding of no jeopardy, the projects still have “the potential to result in significant impacts on ocelots and ocelot recovery.”[34] Moreover, as explained below, these impacts appear imminent.
First, the EIS found construction of the LNG Terminal would generate a level of noise that could cause a “change in ocelot behavior, including temporary or permanent displacement away from noisy areas, [and] may increase intra-species competition for home ranges and resources” and that this noise would affect “suitable habitat in the southern portion of the Laguna Atascosa NWR [and] could affect individual ocelots using the area.”[35] The construction authorized by the Commission’s recent notice to proceed likely would meet or exceed that level of noise given that “pile-driving, which would be required for the installation of the marine facilities and foundations would be louder than typical construction noise.”[36] While the Commission has imposed an environmental condition designed to mitigate the impacts of noise to nearby residents, the EIS found that this condition will “not result in significant changes in noise attenuation identified.”[37] The noise impacts that the EIS associated with the threats to ocelots are starting with the very phase of construction Sierra Club hopes to stay.
Second, loss of habitat is already underway. “[T]he proposed Project would result in the loss (conversion to developed land) of 189.1 acres of upland shrub habitat at the LNG Terminal site, of which 138.3 acres include mesquite-thorn scrub vegetation.”[38] This vegetation is one of the preferred habitats for the ocelot.[39] The EIS found that “a 63.9-acre loma that currently exists on the LNG Terminal site would also be lost during development of the property; loma habitat is important feeding habitat for ocelots.”[40] Pre-construction activities have already disturbed this habitat.[41]
Third and finally, traffic impacts to ocelots also appear imminent. The EIS explains that “about 45 percent of the tracked [ocelot] deaths in south Texas have been due to vehicular incidents.”[42] During peak construction,[43] transit of workers to and from the project site will “represent a considerable increase in the traffic currently experienced on SH-48 (about 12,000 transits per day), and other local roadways,” increasing the chance of an ocelot strike.[44] “[O]celots injured along SH-48 would most likely belong to the Laguna Atascosa NWR population, which is estimated to include 17 cats, [and] each direct mortality would result in a 6 percent reduction in the local population.”[45] Thus, “the loss of one cat would result in a significant impact on ocelots.”[46]
The Order mischaracterizes my dissent in claiming it “focuses on” habitat destruction at the LNG Terminal site, which the Order says has already occurred and therefore would not be impacted by a stay.[47] To be sure, habitat destruction at the LNG Terminal site alone poses a serious danger to the ocelot population, but that is not my sole focus. Rather, my focus is on the effects of several types of adverse impacts – of which habitat loss is one – that combine to imperil the ocelot population.[48] That one of those impacts has already occurred likely makes the consequences of the other ongoing and imminent threats all the worse for the ocelots.
Once irreparable harm has been established, harm to other parties is considered in the stay determination. The Order’s finding that granting a temporary stay would cause delay and therefore harm to Rio Grande, Rio Bravo, and their customers is speculative.[49] The Order does not explain or substantiate what the purported harm is because it lacks the record evidence to do so. As the Authorization Order explains, the Department of Energy (DOE) has sole authority to consider the effects of the LNG exports themselves, including economic impacts.[50] For that reason, the Commission developed no record on the project’s specific benefits. Instead, the Commission relied solely on the fact of DOE’s export authorization and its own perfunctory analysis of environmental impacts in concluding the project is not inconsistent with the public interest.[51] Contrary to the Order’s suggestion, there was no “balancing” of the project’s harms against its benefits in the Authorization Order.[52]
In the stay proceeding, the Commission has made no effort to ascertain the specific harms a temporary stay could cause to the project sponsors and their customers. Sierra Club offers solid evidence in the form of the Commission’s own EIS and a sworn affidavit from one of its members to substantiate the environmental and human health injuries movants will suffer. For its part, the Commission simply assumes, with no explanation, that a stay will delay completion of the project and the assumed delay will automatically harm the project sponsors and their customers.[53] There are many relevant questions the Commission could have and should have considered before jumping to this conclusion. For example, according to Rio Grande LNG’s parent company’s last quarterly report to the Securities and Exchange Commission, the first commercial shipment of LNG from the Rio Grande LNG terminal will not occur until late 2027.[54] There is no indication that the Commission considered whether the project sponsors could accelerate construction later in the project’s remaining four-year construction schedule to make up any time lost due to issuance of a temporary stay. Nor did it seek out any projections of what the market demand for LNG four years from now will be and whether Rio Grande could sell its LNG at a profit.[55] The Commission did not even ask the project sponsors to substantiate the harms they claim they and their customers will suffer. On this record, it appears that the balance of harms factor tilts in Sierra Club’s favor.
Finally, the “public interest” factor also weighs in favor of a stay. Courts have long recognized that “there is a substantial public interest in having governmental agencies abide by the federal laws that govern their existence and operations.”[56] That includes compliance with NEPA.[57] As I demonstrated in my dissents to the Remand Order and Rehearing Order, the Commission violated NEPA by failing to prepare a supplemental EIS following the Vecinos court’s remand.[58] On remand, the Commission conducted an expanded review of EJ impacts that identified 367 additional EJ communities that could be adversely affected by the Rio Grande LNG Terminal and the Rio Bravo Pipeline. Instead of preparing a supplemental EIS and giving these and other affected communities, organizations, and individuals an opportunity to comment it, the Commission included its new analyses in the Remand Order itself. Of course, there is no opportunity for public comment on Commission orders. The Commission’s procedural shortcuts left it with a fundamentally flawed record that could not support a public interest determination under the NGA for either the Rio Grande LNG Terminal or the Rio Bravo Pipeline project.[59] Moreover, in violation of the APA, the Commission failed to provide a reasoned explanation of whether or how it revisited its public interest determinations under sections 3 and 7 of the NGA, as the Vecinos court instructed it to do.[60] Indeed, the Commission left vague whether it had considered its own post-remand environmental analyses at all in its public interest determinations. Failure to fully consider the projects’ environmental justice and other adverse impacts violates the NGA, NEPA, and the APA, a perfect trifecta of errors.[61]
The majority’s determination that a stay is not in the public interest is both conclusory and unpersuasive.[62] The question before us is whether the stay itself is in the public interest, not what the Commission or DOE found in their authorizing orders.[63] To answer that question, the Commission must understand what potential harms a temporary stay would cause to the public and balance them against the harms the public would suffer if construction continues. As demonstrated above, Sierra Club has offered evidence of specific harms to human health and the environment if the Commission denies a stay. In contrast, the Order neither explains why a temporary delay would harm the public interest nor substantiates its conclusion with record evidence.[64] If the Order were correct in suggesting that the public interest finding in the Authorization Order ipso facto determines that a stay is not in the public interest,[65] the public interest prong of the stay standard would be a nullity and no stay of an NGA section 3 or section 7 order could ever be granted. The Commission’s circular reasoning on the public interest prong is not the reasoned decision-making the APA demands.[66] Moreover, even if the Order’s reasoning somehow made sense, the Commission’s NGA public interest determinations in authorizing the projects deserve no weight in determining whether the public interest favors a stay because they rest on a series of fundamental legal errors.[67]
The Commission’s failure to meaningfully engage with the EJ communities, tribes, and NGOs affected by the Rio Grande LNG Terminal and Rio Bravo Pipeline has left us with an incomplete understanding of the impacts these projects will have on the most marginalized among us and how to mitigate them. The Commission’s rigid application of its stay precedents is particularly troubling in this of all cases, where the D.C. Circuit found our original consideration of EJ impacts deficient, our second try on remand was legally flawed, and members and representatives of EJ communities now fear imminent, irreparable injury. At the very least, today’s decision highlights the importance of promptly completing the work the Commission has started to improve its engagement with EJ communities so it does not repeat these errors.
For these reasons, I respectfully dissent.
[1] Rio Grande LNG, LLC, 186 FERC ¶ 61,021 (2024) (Order).
[2] Vecinos Para el Bienstar de la Comunidad Costera v. FERC, 6 F.4th 1321 (D.C. Cir. 2021) (Vecinos).
[3] See Order, 186 FERC ¶ 61,021 at P 15..
[4] In determining whether to grant a stay, the Commission generally considers whether the moving party will suffer irreparable injury without a stay, whether a stay would substantially harm other parties, and whether the stay is in the public interest. Id. at P 13.
[5] See Vecinos, 6 F.4th 1321, at 1329-1331.
[6] 5 U.S.C. § 705.
[7] See, e.g., Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (“[E]nvironmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.”) (quoting Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987)); Nat’l Audubon Soc’y v. Dep’t of the Navy, 422 F.3d 174, 201 (4th Cir. 2005) (quoting Gambell and noting that there are also often irreparable harms when there are disputes regarding NEPA analysis as moving construction forward would render consideration of environmental impacts a “meaningless formality.”); City of Green v. Nexus Gas Transmission, LLC, 2017 U.S. App. LEXIS 23725, *5 (6th Cir. 2017) (unpublished) (quoting Gambell and finding construction of a pipeline “would cause long-term environmental harms” and constitute an irreparable injury); Davis v. Mineta, 302 F.3d 1104, 1115 (10th Cir. 2002) (quoting Gambell). Some courts have adopted “a less demanding standard” to show irreparable harm “requiring only a likelihood, not a certainty, of future irreparable harm” when it comes to harms impacting endangered species listed under the Endangered Species Act (ESA). Ctr. for Biological Diversity v. Ross, 480 F. Supp. 3d 236, 251 (D.D.C. 2020); see also Fund for Animals v. Norton, 281 F. Supp. 2d 209, 221-222 (D.D.C. 2003) (holding that there can be “aesthetic injury based on the mere contemplation of a particular treatment of the animals in question,” even if the plaintiff was unlikely to see the particular animal harmed (emphasis in original)). The harm need not rise to an extinction-level threat to a listed species to constitute irreparable harm. See Am. Rivers v. United States Army Corps of Eng’rs, 271 F. Supp. 2d 230, 258-259 (D.D.C. 2003) (finding an irreparable harm to an endangered species despite it being “undisputed that high flow this summer will not lead to extinction of the species this year.”).
[8] Majid Abdulla Al-Joudi v. Bush, 406 F. Supp. 2d 13, 20 (D.D.C. 2005) (“courts often find a showing of irreparable harm where the movant's health is in imminent danger.”); Coronel v. Decker, 449 F. Supp. 3d 274, 281 (S.D.N.Y. 2020) (“[I]rreparable harm exists where, as here, petitioners face imminent risk to their health, safety, and lives.”) (internal citations omitted); see also Knight v. Richardson Bay Reg'l Agency, 637 F. Supp. 3d 789, 800 (N.D. Cal. 2022) (finding that seizing plaintiff’s boat would cause irreparable harm to his health and safety because he lived on it); Nat'l Ass'n of the Deaf v. Trump, 486 F. Supp. 3d 45, 58-59 (D.D.C. 2020) (finding irreparable harm to deaf individuals denied “information about their health and safety” because of a lack of American Sign Language interpreters at COVID briefings).
[9] See, e.g., Calif. Indep. Sys. Operator Corp., 114 FERC ¶ 61,339, at P 21 (2006) (granting stay to CAISO to avoid economic harm to market participants from Commission order removing Permitted Netting for non-Qualifying Facility suppliers); Mont. Power Co., Confederated Salish and Kootenai Tribes of the Flathead Reservation, 85 FERC ¶ 61,400, at 62,535 (1998) (finding justice required a stay despite purely monetary harms because a hydroelectric project would otherwise be required to make a payment to a Fish and Wildlife Implementation Fund before parties were able to obtain judicial review of the condition mandating the payment); Pinnacle W. Capital Corp., 115 FERC ¶ 61,064, at P 9 (2006) (finding justice required a stay despite purely economic consequences because Pinnacle sought a stay of only two weeks and there would be no adverse impacts to other parties).
[10] FERC, Equity Action Plan at 2 (Apr. 15, 2022), https://www.ferc.gov/equity (explaining Commission’s goal to “better integrate environmental justice and equity considerations in its decision-making processes”).
[11] See discussion infra at PP 13-14.
[12] Sierra Club Motion for Stay at 3.
[13] Id.
[14] Declaration of Juan Mancias at P 8. See also EPA, Health and Environmental Effects of Particulate Matter (PM), https://www.epa.gov/pm-pollution/health-and-environmental-effects-particulate-matter-pm (explaining that “Exposure to [particulate matter] can affect both your lungs and your heart. Numerous scientific studies have linked particle pollution exposure to a variety of problems.”); EPA, Health Effects of Ozone Pollution, https://www.epa.gov/ground-level-ozone-pollution/health-effects-ozone-pollution (describing how ground level ozone can “[m]ake it more difficult to breathe deeply and vigorously and cause pain when taking a deep breath,” [i]nflame and damage the airways,” and “[m]ake the lungs more susceptible to infection.”).
[15] EIS at 4-259.
[16] Id. at 4-257.
[17] Id. at 4-261, 4-262.
[18] See Rio Grande LNG, LLC, 183 FERC ¶ 61,046, at P 141 (2023) (Remand Order).
[19] Remand Order, 183 FERC ¶ 61,046 (Clements, Comm’r, dissenting at P 4); Rio Grande LNG, LLC, 185 FERC ¶ 61,080 (2023) (Rehearing Order) (Clements, Comm’r, dissenting at PP 6-8).
[20] See Order, 186 FERC ¶ 61,021 at P 19. Even if there were a legitimate basis to conclude there would be no NAAQS violation, project related air pollution could still cause irreparable harm. The Commission has repeatedly recognized the United States Environmental Protection Agency’s (EPA) determination that emissions below NAAQS thresholds can cause serious health impacts, especially for individuals with preexisting respiratory conditions like Mr. Mancias. See Port Arthur LNG Phase II, LLC, 184 FERC ¶ 61,184, at P 47 (2023) (“We acknowledge that EPA public rulemakings on the NAAQS have indicated that [health] effects may occur at levels below the NAAQS.”); Gas Transmission Nw., LLC, 185 FERC ¶ 61,035, at P 87 (2023) (“NAAQS attainment alone may not assure there is no localized harm to such populations due to project emissions of volatile organic compounds, hazardous air pollutants as well as issues, such as the presence of non-project related pollution sources, local health risk factors, disease prevalence, and access (or lack thereof) to adequate care.”); see also Texas Eastern Transmission, LP, 184 FERC ¶ 61,187, at P 59 (2023); Colum. Gulf Transmission, LLC, 178 FERC ¶ 61,198, at P 65 (2022). EPA is currently reconsidering the NAAQS standards for PM2.5, in part because “recent epidemiologic studies strengthen support for health effect associations at lower PM2.5 concentrations [than the current NAAQS].” Reconsideration of the National Ambient Air Quality Standards for Particulate Matter, 88 Fed. Reg. 5561 (Jan. 27, 2023). “The available evidence in the 2019 ISA continues to provide support for factors that may contribute to increased risk of PM2.5-related health effects including … pre-existing diseases (cardiovascular disease and respiratory disease), race/ethnicity, and socioeconomic status.” Id. The proposed rulemaking also noted that “[i]n its advice to the Administrator, the [Clean Air Scientific Advisory Committee (CASAC)] concurred … that the currently available health effects evidence calls into question the adequacy of the primary annual PM2.5 standard.” Id. While the Commission has determined that it was appropriate to rely on the NAAQS, it has only done so “in the absence of any other guidance or thresholds for criteria pollutants.” Port Arthur LNG Phase II, LLC, 184 FERC ¶ 61,184, at P 47 (2023) (emphasis added). EPA’s reconsideration of the NAAQS for PM2.5, supported by CASAC’s expert analysis, underscores that there can be significant health impacts at emissions levels below the NAAQS.
[21] Sierra Club Motion for Stay at 3.
[22] Order, 186 FERC ¶ 61,021 at P 20.
[23] Sierra Club Motion for Stay at 3 (citing EIS at ES-6) (emphasis added). The EIS’s finding that the wetlands will be destroyed makes this not just a likely impact, but a certain impact.
[24] Declaration of Juan Mancias at P 10.
[25] This area includes mangroves, shoregrass, sea ox-eye daisy, sea blite, glassworts, and saltwort. EIS at 4-57.
[26] Order, 186 FERC ¶ 61,021 at P 23.
[27] See City of Green, 2017 U.S. App. LEXIS 23725, at *5 (noting that a pipeline would cause long-term environmental harm and finding that “[a]lthough Nexus has agreed to establish wetlands elsewhere to compensate for these environmental injuries, such actions appear relevant to the public interest prong of the stay test, not to the prong that considers irreparable harm to Green.”); Fund for Animals, 281 F. Supp. 2d at 221 (finding irreparable harm to plaintiff’s despite presence of mute swans in many other locations because “[p]laintiffs in this case claim, for the purposes of their request for injunctive relief… to have developed relationships with and aesthetic interests in particular swans located in Maryland, not with all swans in the Atlantic Flyway.”). See also Sierra Club Motion for Stay at 4 (“[E]ven if FERC is correct that off-site mitigation will mean that the net impact to the environment is insignificant, wetland restoration does not mitigate or repair the injury to these movants, who recreate at the Bahia Grande site, rather than at these other locations. Injury to these specific sites is irreparable.”) (emphasis omitted).
[28] Declaration of Juan Mancias at P 10. While the Order seems to imply that Mr. Mancias alleges a harm of not being able to see the ocelots at a specific location, see Order, 186 FERC ¶ 61,021 at P 23, the harm he alleges is broader. Mr. Mancias “is concerned about the projects’ impact on [ocelot and osprey] species and other species in the project area.” Declaration of Juan Mancias at P 10 (emphasis added). As explained above, courts recognize that injury to a local population of species can constitute irreparable harm, notwithstanding the species’ presence in other locations. See, e.g., Fund for Animals, 281 F. Supp. 2d at 221.
[29] Declaration of Juan Mancias at P 10.
[30] EIS at ES-8.
[31] Id.
[32] EIS at 1 (“[T]he Rio Grande LNG Project, combined with other projects within the geographic scope, including the Texas LNG and Annova LNG Projects, would contribute to potential significant cumulative impacts … on the federally listed ocelot and jaguarundi from habitat loss and potential for increased vehicular strikes during construction.”); see also EIS at 4-156 (finding that “ocelots struck by vehicles would most likely be one of the 17 members of the Laguna Atascosa NWR population, and that as a result of their small numbers, each strike would be a significant impact on the population.).
[33] Humane Soc’y of the U.S. v. Kempthorne, 481 F. Supp. 2d 53, 69 (D.D.C. 2006), judgment vacated on other grounds, 527 F.3d 181 (D.C. Cir. 2008) (vacated as moot because the grey wolf was delisted during the course of litigation).
[34] EIS at ES-8. See also Ctr. For Biological Diversity v. Ross, 480 F. Supp. 3d 236, 252 (D.D.C. 2020) (finding irreparable harm occurs in an ESA context when actions are “likely to make the task of preserving the species more difficult.” (cleaned up)).
[35] EIS at 4-159; see also id. at 4-158 (“Construction-related noise could affect ocelot behavior, foraging, or breeding patterns, as they may move away from the noise or relocate in order to avoid the disturbance.”).
[36] Id. at 4-197. Construction of the MOF would require pile driving. Id. at 2-11 to 2-12.
[37] Id. at 4-159 (“Since conducting the noise impact analysis, RG LNG has adopted certain mitigation (see section 4.11.2.3); however, these modifications did not result in significant changes in noise attenuation identified above.”). The mitigation identified in EIS section 4.11.2.3 was required pursuant to Environmental Condition 34. Compare EIS at 4-290 with the Commission’s order authorizing the terminal, Rio Grande LNG, LLC, 169 FERC ¶ 61,131, at Appendix P 34 (2019) (Authorization Order). The condition only requires noise mitigation if noise impacts exceed 10 decibels (dB) over ambient levels at nearby Noise Sensitive Areas (NSAs), which are miles further from the construction site than the Laguna Atascosa NWR. See EIS at 4-284. Project-related noise levels have already reached a maximum of 56.6 dBA at NSA 1. Weekly Noise Data Report for Week 5 at 1. Sound propagation studies in the EIS indicate that if NSA 1 were experiencing 45 dBA of noise, areas of the Laguna Atascosa NWR could expect to experience 70 dBA of noise. EIS at 4-294. Moreover, the EIS found that there could be changes to ocelot behavior at 60 dBA. Id. at 4-159. Since NSA 1 has already experienced noise levels above the level that would produce 70 dBA of noise at the Laguna Atascosa NWR, and ocelot impacts would occur at only 60 dBA, the obvious conclusion is that significant noise impacts have already occurred to ocelots and will do so again if the Commission allows further construction. The Order’s discussion of noise mitigation resulting from the Rio Bravo Pipeline route amendment is irrelevant to this analysis, which focuses on pile driving associated with construction of the Rio Grande LNG Terminal. See Order, 186 FERC ¶ 61,021 at P 21 n.66.
[38] EIS at 4-158.
[39] Id. at 4-155 (noting that “[p]referred [ocelot] habitat … may include chaparral thickets, mesquite-thorn scrub, and live oak mottes”). See also Oct. 2, 2019 FWS Final Biological Opinion at 12 (“The Project would result in the permanent loss of 262.4 acres of dense loma evergreen shrubland, and loma grassland/shrubland, and upland shrub thornscrub habitat for the proposed RGLNG terminal and pipeline system, which are considered preferred ocelot habitat.”).
[40] EIS at 4-158. “Lomas are clay dunes that developed through wind-driven depositional processes and support specific vegetation communities.” Id. at 3-27.
[41] Order, 186 FERC ¶ 61,021 at P 21; see also Oct. 2023 Monthly Status Report No. 47 at 8. The area pictured, Train 1’s footprint, is within the Loma del Rincon Chiquito. See EIS at 4-72 (map showing the location of the loma); id. at 2-4 (map showing the facility layout).
[42] Id. at 4-156.
[43] At this phase of construction, about one-third of the total construction work force will be present. See Resource Report 5 at 14.
[44] EIS at 4-156
[45] Id.
[46] Id. The EIS found these impacts even when “reduced speed limits would be enforced within, to, and from construction workspaces for the entire Project.” Id. The mitigation measures imposed by FWS to “reduce speeds to the maximum extent practicable” therefore do not change the EIS analysis. Aug. 23, 2023 FWS Letter, Docket No. CP23-519-000, at 5.
[47] Order, 186 FERC ¶ 61,021 at P 21.
[48] The EIS finds that “the loss of suitable habitat, through either direct or indirect pathways, has the potential to result in significant impacts on ocelots and ocelot recovery.” EIS at 4-160. The impacts of habitat loss are cumulative and, as discussed above, noise has the potential to further limit suitable ocelot habitat. See supra P 9. The FWS’s Biological Opinion supports my conclusion that multiple stressors likely will have synergistic, adverse effects. For example, the Biological Opinion explains that habitat fragmentation caused by clearing and fencing the terminal site can result in inbreeding, which in turn may “reduce the fitness of individuals[,] … reduce the ability of an animal to adapt to a changing environment[,] and increase population-level disease susceptibility.” Oct. 2, 2019 FWS Final Biological Opinion at 27 (internal citations omitted). The Biological Opinion also notes that “[d]ue to the large home ranges of ocelots and the importance of corridor habitat, even incremental habitat loss could be significant.” Id. at 32.
[49] See Order, 186 FERC ¶ 61,021 at P 28.
[50] Authorization Order, 169 FERC ¶ 61,131 at P 20.
[51] See id. at P 25.
[52] See Order, 186 FERC ¶ 61,021 at P 14.
[53] Id. at P 28.
[54] NextDecade Corp., Form 10-Q for the Quarter Ended September 30, 2023 at 23 (Nov. 13, 2023).
[55] The Order references NextDecade’s July 12, 2023, announcement that it reached a Final Investment Decision (FID) for Phase I of the Rio Grande LNG terminal. Order, 186 FERC ¶ 61,021 at P 28 n.88. That fact does not guarantee that Rio Grande will actually produce and sell LNG four years from now. After it reached FID, NextDecade reported that it has incurred operating losses since its inception and there is “substantial doubt” about the company’s ability to continue as a going concern. NextDecade Corp., Form 10-Q for the Quarter Ended September 30, 2023 at 8, 23 (Nov. 13, 2023).
[56] NAACP v. United States Postal Serv., 496 F. Supp. 3d 1, 20 (D.D.C 2020) (quoting League of Women Voters v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016)). The Order seemingly implies that my focus is on success on the merits. See Order, 186 FERC ¶ 61,021 at P 29 n.89. That is incorrect. Failure to follow the law is a separate and distinct matter that bears on the public interest prong.
[57] See, e.g., Friends of the Capital Crescent Trail v. Fed. Transit Admin., 263 F. Supp. 3d 144, 151 (D.D.C. 2017) (finding it was not in the public interest to allow Maryland to begin construction of a transit project pending appeal “while critical NEPA analysis remains incomplete.”); Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1, 26 (D.D.C. 2009) (holding that “[t]here is no question that the public has an interest in having Congress’ mandates in NEPA carried out accurately and completely,” and that “[t]he public also has an interest in ensuring that the Final Rule promulgated by the DOI does not give way to unintended environmental consequences that have not (but should have) been evaluated.”); Fund for Animals, 281 F. Supp. 2d at 237 (finding plaintiffs likely to succeed on claims agency violated NEPA and enjoining culling of mute swans).
[58] See Remand Order, 183 FERC ¶ 61,046 (Clements, Comm’r, dissenting at PP 2-4); Rehearing Order, 185 FERC ¶ 61,080 (Clements, Comm’r, dissenting at PP 4-8).
[59] Remand Order, 183 FERC ¶ 61,046 (Clements, Comm’r, dissenting at P 1). The fundamentally deficient administrative record similarly cannot support the Commission’s conclusion that the projects are “environmentally acceptable.” The Order repeatedly invokes that finding to support its conclusion that Sierra Club failed to demonstrate irreparable harm. Beyond lacking record support, the Order’s reasoning is flawed. Even if the projects overall were “environmentally acceptable,” they nevertheless could impose irreparable injury on particular communities or individuals, as Sierra Club alleges the Rio Grande Terminal and Rio Bravo Pipeline will.
[60] Rehearing Order, 185 FERC ¶ 61,080 (Clements, Comm’r, dissenting at PP 12-15).
[61] See id. (Clements, Comm’r, dissenting at PP 15-18).
[62] See Order, 186 FERC ¶ 61,021 at P 29.
[63] See Philipp v. Fed. Republic of Germany., 436 F. Supp. 3d 61, 69 (D.D.C. 2020) (weighing the public interest of “prompt resolution of claims stemming from Holocaust-era crimes” against “the importance of issues of sovereign immunity” in deciding whether to stay an order allowing an action against Germany to proceed).
[64] See Sierra Club Motion for Stay at 6 (arguing that “if the courts reject Port Isabel’s challenge, and the project moves forward, this would merely incrementally delay benefits that would not be realized for years in any event, given the long production timetable. And while FERC found that it could not determine that the project was contrary to the public interest, neither FERC nor the Department of Energy have found that there is any urgent need for the exports this project would enable.”) (emphasis added).
[65] See Order, 186 FERC ¶ 61,021 at P 14 (in reaching its public interest determination in the Authorization Order, “the Commission carefully considered and balanced the alleged harms of the project against its benefits.”). In reality, as explained above, because DOE makes the determination whether to approve LNG exports the Commission has no actual record of what the benefits of LNG exports will be and, as a consequence, performs no real “balancing” of harms against benefits. In any event, the Authorizing Order certainly did not balance the benefits and harms of a temporary stay, which is the issue before us today.
[66] See, e.g., Petro Star Inc. v. FERC, 835 F.3d 97, 108 (D.C. Cir. 2016) (Commission’s “circular rationale” does not satisfy APA requirement of reasoned decision-making).
[67] See discussion supra at P 15.