Docket No. CP16-116-003
I dissent from today’s Order[1] for the same reasons I dissented from the Remand Order.[2] In addition, and perhaps most fundamentally, I dissent because the Order flouts the D.C. Circuit court’s directive in Vecinos to (1) explain whether the Council on Environmental Quality’s (CEQ) regulation, 40 C.F.R. § 1502.21(c), required the Commission to use the Social Cost of Carbon (SCC) protocol to assess greenhouse gas (GHG) emissions; and (2) revisit the Commission’s Natural Gas Act (NGA) public interest determination after addressing the deficiencies the court identified in the Commission’s analysis of environmental justice (EJ) and climate change impacts.[3]
In particular, I agree with the rehearing petitioners[4] (collectively, Sierra Club) that the Commission was obligated to (1) prepare a supplemental environmental impact statement (EIS) for Texas LNG Brownsville LLC’s (Texas LNG) proposed liquified natural gas terminal project (Texas LNG Project or project), and (2) provide a meaningful opportunity for public comment on the supplemental EIS, as well as on required mitigation measures. The Commission’s failure to do so has left us with a fundamentally flawed record that cannot support a public interest determination for the project. Moreover, I disagree with the Order’s conclusion that it is impossible for the Commission to determine the significance of the environmental impacts of the project’s GHG emissions.[5] The Commission’s continued failure to grapple with the significance issue puts our orders in jeopardy upon judicial review, particularly this one. Finally, I object to language in the Order making it unclear—apparently deliberately—whether the Commission considered GHG emissions at all in its NGA public interest determinations, as it was legally required to do.[6] For these reasons, I would have granted rehearing and found that the Texas LNG Project is inconsistent with the public interest.
Following the D.C. Circuit court’s remand of the Commission’s original authorization orders in Vecinos, the Commission conducted new analyses of the project’s impacts on EJ communities, including air quality and visual impacts. Instead of issuing a supplemental EIS fully explaining these analyses and taking public comment on it, the Commission instead merely summarized the results in its Remand Order. This was an unlawful procedural shortcut that left the Commission with a fatally deficient administrative record.
Under CEQ’s regulations implementing the National Environmental Policy Act (NEPA),[7] which the Commission’s own NEPA regulations compel us to follow,[8] a supplemental EIS is required when “there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.”[9] In my dissent from the Remand Order, I explained that the Commission’s new analysis identifying hundreds of additional potentially affected EJ communities by itself constituted “significant new information” requiring a supplemental EIS.[10] This new information painted a “seriously different picture of the environmental landscape,” which necessitated a supplemental EIS under relevant case law.[11] Moreover, the Commission found that the Texas LNG Project may cause significant air quality impacts and would cause significant visual impacts on EJ communities and their individual members.[12] This was another, independent reason that a supplemental EIS was required.[13]
The impacts identified in the Commission’s new analyses are particularly important because they would fall on EJ communities, which “experience disproportionate and adverse human health or environmental burdens.”[14] Members of these communities suffer from poorer health outcomes and have lower life expectancies than those in other communities.[15] The causes of this include inequitable access to clean water, clean air, natural places, and resources for other basic human health and environmental needs.[16] The cumulative effects of exposure to the disproportionate burdens placed on EJ communities, taken together with the adverse impacts identified in the Commission’s new analyses, will further disadvantage these communities. By failing to fully assess these impacts in a supplemental EIS reflecting input from affected EJ communities, the Commission contributes to a longstanding problem of “gaps in environmental and human health data … [that act as] a persistent and pernicious driver of environmental injustice.”[17]
The Remand Order asserts that the Texas LNG Project would not have a significant impact on air quality—and that no supplemental EIS therefore is required—based on the unsupported assumption that the air monitoring and mitigation plan required by new Environmental Condition 130 would prevent the combined construction, commissioning, start-up, and operational emissions from causing an exceedance of the pertinent National Ambient Air Quality Standards (NAAQS).[18] While the courts have generally held that mitigation measures can be used to justify a finding of no significant impact (FONSI), an agency “must explain exactly how the measures will mitigate the project’s impact.”[19] Although the agency is not required to have a complete mitigation plan for a “mitigated FONSI,” the measures must be “developed to a reasonable degree.”[20] Moreover, the agency must demonstrate the feasibility of the mitigation measures, rather than relying on cursory descriptions of them.[21]
Environmental Condition 130 falls far short of these standards. Indeed, the condition is nothing more than “a plan to have a plan,” as Sierra Club aptly put it.[22] The condition does not say how many or what type of monitors Texas LNG must have, how a NAAQS exceedance would be calculated, what mitigation measures Texas LNG must implement in response to a NAAQS exceedance or how quickly it must do so, or whether or how Texas LNG must share the results of its monitoring and analysis with federal and state air quality regulators or the public.[23] Worst of all, there is no explanation of whether it will even be feasible for Texas LNG to prevent a NAAQS exceedance. For these reasons, the Commission cannot rely on Environmental Condition 130 to support its FONSI and therefore must prepare a supplemental EIS fully assessing significant air quality and other impacts, as well as mitigation measures to prevent or minimize those impacts.[24]
The unfortunate fact is that the Commission cannot demonstrate that the air quality and visual impacts identified in the Remand Order are the only significant impacts EJ communities will suffer from the project. The reason is simple: the Commission did not effectively elicit the public comment that is foundational to a complete environmental review. As I explained in my dissent from the Remand Order, members of the hundreds of newly identified EJ communities have no way of knowing they are within the project’s potential impact zone, let alone knowledge of whether and how they might provide information to the Commission on what those specific impacts would be or how to mitigate them.[25] The Commission’s failure to give the public opportunity to comment on the new analyses in the Remand Order or on the “mitigated FONSI” included in that order appears to contravene CEQ’s guidance.[26] Although the Commission did provide an opportunity for comment on the project sponsor’s responses to certain of Commission staff’s highly technical environmental information requests, there was no opportunity to comment on critical air modeling information used in the Commission’s cumulative air impacts analysis because that information was submitted after the public comment period closed.[27] The Order misses the mark in claiming that “any person may file comments on the docket.”[28] The ability to file comments in the docket is meaningless, where, as here, potentially impacted communities have no actual notice of their ability to file. To assure meaningful public participation, the Commission should have had an affirmative outreach program for potentially affected communities that included notifications in both English and Spanish.[29]
I also dissent with respect to the Order’s claim that the Commission is incapable of determining the significance of GHG emissions associated with the project. The Order’s insistence that there are no acceptable tools for determining the significance of GHG emissions remains unsupported, and gains nothing through reflexive repetition in virtually every recent Commission order issued under sections 3 and 7 of the NGA.
In my recent concurrence in Transco, I explained the history of the language in Paragraphs 42 and 43 of the Order,[30] which has come to be known as the “Driftwood compromise.”[31] In Driftwood, the majority adopted unheralded new language declaring that there are no methods for assessing the significance of GHG emissions, and particularly criticized the SCC protocol.[32] I have dissented from this language in Driftwood and subsequent orders for two reasons: (1) it reflects a final Commission decision that it cannot determine the significance of GHG emissions, despite the fact the Commission has never responded to comments in the GHG Policy Statement docket[33] addressing methods for doing so; and (2) the language departs from previous Commission precedent without reasoned explanation, thereby violating the Administrative Procedure Act.[34] I dissent from the language in paragraphs 42 and 43 of the Order for the same reasons.
More fundamentally, I dissent from the Order’s discussion of GHGs because it fails to satisfy the court’s direction in Vecinos to explain whether 40 C.F.R. § 1502.21(c) calls for the Commission to use the SCC protocol or some other analytical framework to assess GHGs and “if not, why not.”[35] Rather than providing a reasoned analysis of CEQ’s regulation, the Order merely repeats the Commission’s superficial arguments against use of the SCC protocol.[36] In analyzing whether CEQ’s regulation calls for use of the SCC protocol, the obvious central question is what CEQ’s own position is on the protocol’s usefulness in NEPA analyses. The Commission needn’t look far to discover that CEQ unambiguously supports use of the SCC protocol in NEPA reviews. CEQ’s 2016 GHG Guidance identifies the SCC protocol as a “harmonized, interagency metric that can give decision makers and the public useful information for their NEPA review.”[37] CEQ’s new GHG guidance issued in 2023 similarly recommends using the protocol in NEPA reviews, making no distinction between project-level analyses and agency rulemakings.[38] The Order simply misses the point in stating CEQ’s 2016 guidance “does not impose legal requirements on the Commission.”[39] The question posed on remand is whether CEQ’s regulation should be interpreted to call for use of the SCC protocol in assessing GHG emissions. Based on CEQ’s 2016 and 2023 guidance documents, the answer is “yes.”
I further object to language in paragraph 38 of the Order making unclear whether the Commission considered GHG emissions at all in its public interest determination. Sierra Club asserts that the Commission has the authority and obligation to consider GHG emissions as part of its public interest determination under the NGA, including their significance and environmental impact.[40] As discussed below, the Order’s response to this argument is deliberately vague and nearly unintelligible. Worse, the Order fails to provide a reasoned explanation of whether or how it “revisit[ed] its determinations of public interest and convenience under Section 3 . . . of the NGA,”[41] as the Vecinos court directed it to do. Rather than explaining whether and how the Commission factored its post-remand EJ and GHG analyses into its public interest determination, the Order seems to suggest that environmental considerations may not be part of the Commission’s substantive public interest determination at all. It will likely come as quite a surprise to the court that the Commission may be using this order on rehearing to question decades of court and Commission precedents finding that environmental considerations are an integral part of the Commission’s public interest determinations under the NGA.
In response to Sierra Club, the Order says the Rehearing Request “conflates the Commission’s NGA and NEPA responsibilities, which are separate and distinct. The Commission’s balancing under the public interest standard is consistent with the purpose of the NGA and is therefore afforded deference.”[42] The Order then cites the Supreme Court’s decision in NAACP v. Fed. Power Comm’n,[43] and includes a parenthetical explaining that the Court said “the purpose of the NGA is to ‘encourage the orderly development of plentiful supplies of . . . natural gas at reasonable prices’ and also observing that there are subsidiary purposes to the Act including ‘conservation, environmental, and antitrust questions.’” This leaves ambiguous whether the Commission’s public interest determination focuses exclusively on “encouraging the development of natural gas supplies” or also encompasses environmental considerations, including the impacts of GHG emissions.
The Commission used nearly identical language in its order in Commonwealth LNG,[44] prompting me to dissent.[45] If the Rorschach test could be translated into words, it might read like paragraph 38 of the Order. The Order’s language is a verbal inkblot, with no fixed meaning. Its ambiguity leaves each of its authors free to say—outside the pesky confines of the Commission’s actual order—either that the Commission does or does not consider GHG impacts in its public interest determinations. The Order appears to be deliberately propagating ambiguity in this case considering that (1) I criticized the vagueness of the language in my dissent in Commonwealth LNG, and (2) there is no other reason for the majority to include the language here because, according to the Order, Sierra Club’s “argument is not properly before us on rehearing as it is outside the scope of the court’s remand.”[46]
As I explained in my dissent in Commonwealth LNG, a reviewing court cannot discern from the inkblot language whether the Commission finds that it must consider climate impacts and, if so, whether and how it weighs them in its public interest determinations.[47] In failing to explain its reasoning, the Commission violates the most basic requirement of the Administrative Procedure Act.[48] Additionally, in this case, it flouts the Vecinos court’s direction to revisit the Commission’s public interest determinations under the NGA after correcting the deficiencies in the Commission’s original EJ and GHG analyses.
To the extent the language in paragraph 38 of the Order is meant to suggest the Commission is not required to consider the environmental impacts of the project’s GHG emissions in its public interest determinations under section 3 of the NGA, it is plainly wrong and contravenes decades of court and Commission precedents. The courts have consistently found that the Natural Gas Act public interest standard encompasses environmental considerations. More than sixty years ago, the Supreme Court held that our predecessor agency, the Federal Power Commission, properly factored air pollution impacts into its public interest determination under section 7 of the NGA.[49] Nearly fifty years ago, in NAACP, the Supreme Court held that environmental protection is one purpose of the NGA.[50] Over twenty years ago, courts continued to recognize that the NGA public interest determination involves weighing “market support, economic, operational, and competitive benefits, and environmental impact[s].”[51] Finally, many recent decisions—including the D.C. Circuit’s remand decision in this case—make clear that the Commission must consider the climate impacts of GHG emissions in its public interest determinations under the statute.[52] If the Commission now intends to say that climate impacts (or any other environmental considerations) are no longer part of its public interest determination under the NGA, it must say so unambiguously and give a reasoned explanation for that conclusion.[53]
NEPA also requires the Commission to consider climate and other environmental impacts in deciding whether to approve a project application. As the Supreme Court has explained, NEPA’s environmental impact statement requirement “ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts….”[54] The Order’s statement that the Commission’s responsibilities under the NGA are “separate and distinct” from those under NEPA could be interpreted to suggest the statutes bear no relation to each other.[55] To the contrary, the Commission’s obligations under the two statutes are inextricably linked. NEPA directs federal agencies “to the fullest extent possible” to interpret and administer their organic statutes in accordance with the environmental protection objectives set forth in NEPA.[56] In requiring the Commission to consider environmental impacts in its substantive decision-making, NEPA gives content to the NGA’s broad “public interest” standard.[57]
The best that can be said of the Order’s attempt to divorce NEPA compliance from the Commission’s substantive decision-making under the NGA is that it badly misconstrues both statutes. But the Order’s misguided language is even more indefensible here than it was in Commonwealth LNG. The Vecinos court ordered the Commission to “reconsider its determinations of public interest and convenience under … [Section 3] of the NGA, along with its NEPA analyses of the projects’ impacts on climate change and environmental justice communities.”[58] By failing to clearly explain how, or even if, the Commission factored its post-remand environmental analyses into its NGA public interest determination, the Commission failed to respond to the court’s directive. Of the many serious errors in this deeply flawed Order, that may be the greatest.
For the foregoing reasons, I respectfully dissent.
[1] Tex. LNG Brownsville LLC, 185 FERC ¶ 61,079 (2023) (Order).
[2] See Tex. LNG Brownsville LLC, 183 FERC ¶ 61,047 (2023) (Remand Order) (Clements, Comm’r, dissenting).
[3] See Vecinos para el Bienestar de la Comunidad Costera v. FERC, 6 F.4th 1321, 1329, 1331 (D.C. Cir. 2021) (Vecinos).
[4] On May 22, 2023, Vecinos para el Beienestar de la Comunidad Costera, Sierra Club, and City of Port Isabel filed a joint request for rehearing of the Remand Order (Rehearing Request).
[5] See Order, 185 FERC ¶ 61,079 at PP 42-43.
[6] See id. P 38.
[7] 42 U.S.C. §§ 4321-4370j (2021).
[8] See 18 C.F.R. § 380.1 (2022).
[9] 40 C.F.R. § 1502.9(d)(1)(ii) (2022).
[10] Remand Order, 183 FERC ¶ 61,047 (Clements, Comm’r, dissenting at P 3).
[11] See Stand Up for Cal.! v. Dep’t of the Interior, 994 F.3d 616, 629 (D.C. Cir. 2021) (emphasis in original) (quoting Friends of Capital Crescent Trail v. FTA, 877 F.3d 1051, 1060 (D.C. Cir. 2017)) (internal quotation marks omitted).
[12] See Remand Order, 183 FERC ¶ 61,047 at PP 69 (describing potential NAAQS violations from simultaneous construction, commissioning, start-up, and operations), 72 (“individuals from environmental justice communities fishing or otherwise recreating near the terminal may experience adverse air quality impacts”), and 79 (finding cumulative adverse visual impacts on individuals from EJ communities would be significant). In contrast, the 2019 EIS found that “there is no evidence that [EJ] communities would be disproportionately affected by the project or that impacts on [EJ] communities would appreciably exceed impacts on the general population. It is not anticipated that the project would cause significant adverse health or environmental harm to any community with a disproportionate number of minority or low-income populations.” EIS at 4-157. The air quality cumulative impacts section concluded that air pollutant emissions would have only “minor impacts on the local air quality and would not result in significant impacts on regional air quality,” and said nothing about significant adverse effects on EJ communities or their individual members. See id. at 4-184.
[13] See Remand Order, 183 FERC ¶ 61,047 (Clements, Comm’r, dissenting at P 4).
[14] Exec. Order No. 14096, 88 Fed. Reg. 25251, 25252 (Apr. 21, 2023).
[15] Id.
[16] Id.
[17] Id.
[18] Remand Order, 183 FERC ¶ 61,047 at PP 70-71.
[19] LaFlamme v. FERC, 852 F.2d 389, 399 (9th Cir. 1988) (emphasis added) (citing Steamboaters v. FERC, 759 F.2d 1382, 1394 (9th Cir. 1985); Jones v. Gordon, 792 F.2d 821, 829 (9th Cir. 1986)).
[20] National Parks & Conservation Association v. Babbitt, 241 F.3d 722, 734 (9th Cir. 2001) (citations omitted); see also CEQ, Final Guidance for Federal Departments and Agencies on the Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact, 76 Fed. Reg. 3843-01, 3848 (Jan. 21, 2011) (CEQ Mitigation Guidance) (mitigation measures should be “clearly described” and “carefully specified in terms of measurable performance standards or expected results”).
[21] See O’Reilly v. U.S. Army Corps of Engineers, 477 F.3d 225, 234 (5th Cir. 2007).
[22] Rehearing Request at 20.
[23] Environmental Condition 130 does require Rio Grande to file weekly reports with the Commission about exceedances. Remand Order, 183 FERC ¶ 61,047 at app. A, P 130(c). The Commission cannot reasonably assume that air quality regulators or members of the public would monitor the docket for this information without some form of affirmative notice from Rio Grande or the Commission.
[24] The cases cited in the Order at P 27 are readily distinguishable. None address the requirements for a mitigated FONSI. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989); Sierra Club v. FERC, 38 F.4th 220, 233 (D.C. Cir. 2022); Mayo v. Reynolds, 875 F.3d 11, 15-16 (D.C. Cir. 2017); Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 206 (D.C. Cir. 1991). And none approved a cursory plan to develop unspecified mitigation measures in the future.
[25] Remand Order, 183 FERC ¶ 61,047 (Clements, Comm’r, dissenting at P 7).
[26] See CEQ Mitigation Guidance, 76 Fed. Reg. 3848 (explaining CEQ’s regulations provide for public involvement in the development of a mitigated FONSI document) (citations omitted). In defending the Commission’s approach, the Order states that the Commission “is generally master of its own calendar and procedures.” Order, 185 FERC ¶ 61,079 at P 27. Although that may be generally true, the Commission’s regulations provide that it will comply with CEQ’s NEPA regulations (18 C.F.R. § 380.1), and CEQ interprets its regulations to require specific procedures for a mitigated FONSI. None of the cases that the Order cites address public involvement with respect to a mitigated FONSI. See Order 185 FERC ¶ 61,079 at P 27 n.81.
[27] See Remand Order, 183 FERC ¶ 61,047 (Clements, Comm’r, dissenting at P 11).
[28] Order, 185 FERC ¶ 61,079 at P 33.
[29] Despite the Projects’ documented impact on majority Hispanic/Latino communities with limited English proficiency, the Commission declined to provide any materials in Spanish. See Remand Order, 183 FERC ¶ 61,046 at PP 111, 119. In Cameron County, 70 percent of residents speak Spanish at home and 33.5 percent of the Spanish speaking population speaks English less than very well. In Port Isabel, the city closest to the LNG terminal, a majority of residents speaks Spanish at home and 27.1 percent speak English less than well. See Rehearing Request at 39. While Rio Grande did translate materials regarding the project and provided Spanish-speaking representatives at the public scoping and comments meeting, the Commission failed to do so. See Remand Order, 183 FERC ¶ 61,046 at n.195; P 85.
[30] See Transcon. Gas Pipe Line Co., 184 FERC ¶ 61,066 (2023) (Clements, Comm’r, concurring at PP 2-3).
[31] See id. (Phillips, Chairman, and Christie, Comm’r, concurring at P 1).
[32] See Driftwood Pipeline LLC, 183 FERC ¶ 61,049, at PP 61, 63 (2023) (Driftwood).
[33] Docket No. PL21-3.
[34] See Driftwood, 183 FERC ¶ 61,049 (Clements, Comm’r, dissenting at PP 2-3); see also Port Arthur LNG Phase II, LLC, 184 FERC ¶ 61,184 (2023) (Clements, Comm'r, dissenting in part at PP 2-3); Venture Global Calcasieu Pass, LLC, 184 FERC ¶ 61,185 (2023) (Clements, Comm'r, dissenting in part at PP 2-4); Northern Natural Gas Company, 184 FERC ¶ 61,186 (2023) (Clements, Comm’r, dissenting in part at PP 2-3); Texas Eastern Transmission, LP, 184 FERC ¶ 61,187 (2023) (Clements, Comm’r, dissenting in part at PP 2-4); Equitrans, L.P., 183 FERC ¶ 61,200 (2023) (Clements, Comm’r dissenting at PP 2-3); Commonwealth LNG, LLC, 183 FERC ¶ 61,173 (2023) (Clements, Comm'r, dissenting at PP 5-8); Rio Grande LNG, LLC, 183 FERC ¶ 61,046 (2023) (Clements, Comm'r, dissenting at PP 14-15); Remand Order, 183 FERC ¶ 61,047 (2023) (Clements, Comm’r, dissenting at PP 14-15).
[35] Vecinos, 6 F.4th at 1330. Given the requirement under the Administrative Procedure Act that agencies provide a reasoned explanation for their decisions, Envtl. Def. Fund v. FERC, 2 F.4th 953, 968 (D.C. Cir. 2021), I understand that is what the court has asked the Commission to provide on remand. The Order is long on pronouncements, but woefully short on reasoning.
[36] Order, 185 FERC ¶ 61,079 at PP 41-44. To be sure, some courts have upheld the Commission’s determination not to use the SCC protocol. See id. at P 42 & n.136. But the court in Vecinos distinguished some of those cases because they did not address the CEQ regulation at issue here. Vecinos, 6 F.4th at 1329. The Sierra Club makes this very point, but the Order omits any mention of it, disregarding both the Vecinos decision and an important argument raised on rehearing. See Rehearing Request at 32.
[37] Council on Envt’l Quality, Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews at 33 n.86 (Aug. 1, 2016), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/nepa_final_ghg_guidance.pdf.
[38] See Council on Envt’l Quality, National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change, 88 Fed. Reg. 1196 (Jan. 9, 2023).
[39] Order, 185 FERC ¶ 61,079 at P 41.
[40] Rehearing Request at 30.
[41] Vecinos, 6 F.4th at 1331.
[42] Order, 185 FERC ¶ 61,079 at P 38.
[43] 425 U.S. 662, 669 (1976).
[44] See Commonwealth LNG, LLC, 183 FERC ¶ 61,173, at P 37 (2023) (Commonwealth LNG).
[45] Id. (Clements, Comm’r, dissenting, at PP 2-4).
[46] Order, 185 FERC ¶ 61,079 at P 38.
[47] Commonwealth LNG, 183 FERC ¶ 61,173 (Clements, Comm’r, dissenting, at P 2).
[48] See, e.g., SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) (“[T]he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.”); Del. Riverkeeper Network v. FERC, 753 F.3d 1304, 1313 (D.C. Cir. 2014) (quoting Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)) (“[A]n agency action will be set aside as arbitrary and capricious if it is not the product of ‘reasoned decisionmaking.”).
[49] Fed. Power Comm’n v. Transcon. Gas Pipe Line Corp., 365 U.S. 1, 5 (1961). While the case dealt with a Section 7 question, "[t]he Commission has long regarded Section 3's 'public interest' standard and Section 7's 'public convenience and necessity' standard as substantially equivalent." Distrigas Corp. v. Fed. Power Comm’n., 495 F.2d 1057, 1065 (D.C. Cir. 1974).
[50] 425 U.S. at 669; Id. at 670 n.6.
[51] See, e.g., South Coast Air Quality Mgmt. Dist. v. FERC, 621 F.3d 1085, 1099 (9th Cir. 2000).
[52] See Vecinos, 6 F.4th at 1329, 1331 (finding Commission’s analysis of climate change impacts deficient under both the NGA and NEPA and directing Commission to revisit its public interest determination after correcting deficiencies); see also Cntr. for Biological Diversity v. FERC, 67 F.4th 1176, 1188 (D.C. Cir. 2023) (holding that the Commission makes an appropriate NGA public interest determination when it finds that a project has “substantial economic and commercial benefits” that are “not outweighed by the projected environmental impacts”); Birckhead v. FERC, 925 F.3d 510, 519 (D.C. Cir. 2019) (in addressing arguments relating to GHG emissions, the court explains that the Commission’s public interest determination includes environmental considerations); Sierra Club v. FERC, 867 F.3d 1357, 1373 (D.C. Cir. 2017) (in addressing Commission’s treatment of GHG emissions, the court explains that the balancing of factors in determining the public convenience and necessity includes environmental effects); Sierra Club v. FERC, 827 F.3d 36, 42 (D.C. Cir. 2016) (“As required by the Natural Gas Act and NEPA, the Commission undertook an extensive review of the Freeport Projects.”); Food & Water Watch v. FERC, 28 F.4th 277, 282 (D.C. Cir. 2022) (“The Section 7 certificate process incorporates review of proposed projects under the National Environmental Policy Act (NEPA).” The court also noted that the NEPA review requires an analysis of downstream GHG emissions.); City of Oberlin, Ohio v. FERC, 937 F.3d 599, 602 (D.C. Cir. 2019) (holding that “[a]s part of the Section 7 certificating process… the Commission must complete an environmental review of the proposed project under the National Environmental Policy Act.”) (emphasis added); Minisink Residents for Env't Pres. & Safety v. FERC, 762 F.3d 97, 106–11 (D.C. Cir. 2014) (stating that FERC is obligated to consider alternatives to a proposed project that might better serve the public interest, including on the basis of their environmental impact, when issuing a certificate under Section 7); Delaware Riverkeeper Network v. FERC, 45 F.4th 104, 115 (D.C. Cir. 2022) (“[T]he Commission’s balancing of public benefits and adverse consequences [in issuing a certificate] reasonably accounted for potential environmental impacts.”).
[53] “[T]he requirement that an agency provide reasoned explanation for its action [under the Administrative Procedure Act] would ordinarily demand that it display awareness that it is changing position.” FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).
[54] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (emphasis added).
[55] See Order 185 FERC ¶ 61,079 at P 38.
[56] 42 U.S.C. § 4332; see also 42 U.S.C. § 4331 (setting forth NEPA’s environmental protection objectives).
[57] Cf. Village of Barrington v. Surface Transp. Bd., 636 F.3d 650, 665-66 (D.C. Cir. 2011) (upholding agency’s interpretation of “public interest” in its organic statute to include environmental considerations given NEPA’s language and goals).
[58] 6 F.4th at 1331.